Ministerial code investigation: complaint about Cabinet Secretary for Justice and Home Affairs

In the matter of an investigation by the First Minister’s Independent Advisers on the Ministerial Code into a complaint about the Cabinet Secretary for Justice and Home Affairs, Ms Angela Constance MSP.  

5 January 2026  

Dear First Minister,  

In accordance with the Scottish Ministerial Code (2025) and the terms of our appointment, we informed Officials on 22 December 2025 of our decision to independently investigate the complaint made on 12 December 2025 by Mr Russell Findlay MSP against the Cabinet Secretary, Ms Angela Constance MSP. The complaint was supplemented by an email from Mr Anas Sarwar MSP on 16 December 2025. On advice we did not respond to either request ourselves given the way in which a referral or a decision to undertake an independent investigation should be made. This is the outcome of our investigation.  

We have been assisted by a member of the Ethics and Propriety Directorate who has no previous knowledge of or involvement in the matters that are the subject of the complaint before the complaint was made and has not been involved in giving advice to Ministers. She has collated into an inventory all of the documents and recordings that have been made available to us, the contents of which we have considered. We are grateful to her. Those materials include recordings of a Committee of Parliament, the Education, Children and Young Persons Committee, held on the 17 December 2025 at which Ms Constance and Professor Jay answered questions put by Members and a BBC Radio 4 discussion between a journalist and Professor Jay on 7 January 2025.  

We have come to the conclusion that the Cabinet Secretary, Ms Angela Constance MSP, breached two provisions of the Ministerial Code and that she did so unintentionally. We recommend that she make a statement to Parliament to clarify the statement she made on 16 September 2025 and that she be reproved formally in writing for those breaches.  

Our conclusions are as follows: 

1. Ms Constance made a statement in Parliament on 16 September 2025 in response to amendments tabled by Mr Liam Kerr MSP during stage 3 of the Victims, Witnesses and Justice Reform Bill. The amendments related to the proposed functions of the Victims and Witnesses Commissioner not to the separate question whether there should be a national inquiry in Scotland into group-based child sexual exploitation. 

2. The words used by Ms Constance are as follows: 

“It is important that we get the right type of data, and that work is of course under way. Is Mr Kerr aware of the work led by Professor Alexis Jay, who was the chair of an independent inquiry into child sexual abuse in England and Wales and who currently sits on our national strategic group? She shares my view and has put on the record and stated to the media that she does not support further inquiries into child sexual abuse and exploitation, given the significant time and resource already spent in the review that she led, the Casey audit and other reviews. She says that it is now time that “people should just get on with it”. I contend that that is what the Scottish Government is doing right here, right now—we are getting on with the work that we need to do to protect children.” 

3. The wording came from an ‘Additional Briefing’ note prepared for Ms Constance by Officials for use in Parliament in relation to Mr Kerr’s amendment that included the following: 

“…It should be noted that the former Chair of the Independent Inquiry into Child Sexual Abuse (IICSA) in England and Wales, Professor Alexis Jay, is a member of the [National Child Sexual Abuse and Exploitation] Group, and at the meeting [on 14 July] did not recommend that a Scotland-specific inquiry is required on this issue. Professor Jay has previously stated to the media that she does not support further inquiries on CSAE given the significant time and resource already spent on IICSA, Casey Audit and other reviews, and has indicated the focus should be on implementing service– and system-level improvements. 

Alexis Jay, BBC Radio 4’s Today Programme (7 January) that "people should get on with" implementing her reforms and "locally people need to step up to the mark and do the things that have been recommended". "We've had enough of inquiries, consultations and discussions - especially for the victims and survivors who've had the courage to come forward,"… asked if a new national inquiry would hinder the implementation of her recommendations, Prof Jay said: "It would certainly cause delays."' 

4. The quotation and the summary taken from the radio programme by Officials are accurate but the Additional Briefing note does not make it clear that the discussion in that programme between Professor Jay and the journalist related to the recommendations that the Professor had made as part of the national inquiry into institutional child abuse in England and Wales. The programme was not focussed on any question that was expressly directed to the position in Scotland (save to refer without definition to ‘national’ issues) nor was it concerned with the subject matter of Mr Kerr’s amendment. 

Furthermore, there is no evidence that the Additional Briefing note was accurate in its assumption that Professor Jay held the view attributed to the National Child Sexual Abuse and Exploitation Group otherwise known as the National Strategy Group at their meeting on 14 July. Indeed, Officials confirm that she had not been asked to express her view prior to 26 September. 

5. The statement that Ms Constance made was factually accurate in two respects: a) the quotations were made by Professor Jay in the radio programme to which we refer, and b) the quotations had been put on the record and shared with the media by Professor Jay in that programme. Professor Jay has agreed the accuracy of the words used in subsequent correspondence with Officials which has already been disclosed in public. 

6. On 26 September 2025 Professor Jay emailed Ms Constance and Officials to request that a clarification be made because although the quotations repeated by Ms Constance were accurate, when spoken to by Professor Jay they did not relate to the subject matter of the amendment or the position in Scotland. The text of Professor Jay’s email is as follows: 

“Dear Ms Constance, I write with reference to your statement earlier this week in the Scottish Parliament about a proposed amendment to the Victims, Witnesses, and Justice Reform (Scotland) Bill by Liam Kerr, msp. You correctly quoted me as saying ‘people should just get on with‘ action on child sexual exploitation. I made this comment on January 7 of this year in the context of the England and Wales Public Inquiry on Child Sexual Abuse, which I chaired, on which little had been done at that time to progress my final recommendations. My statement followed an intervention by Elon Musk. It had nothing to do with Mr Kerr’s amendment, or the position in Scotland, as could be interpreted from your statement. I have expressed no views on Mr Kerr’s amendment, but I am of the opinion that the Scottish Government should urgently take steps to establish reliable data about the nature and extent of child sexual exploitation by organised networks, of which so-called ‘grooming gangs’ is only one component. In the context of the national strategic group, I have had discussions with officials about how this might be achieved. I would appreciate my position being clarified.” 

7. Ms Constance’s statement to Parliament included the proposition that Professor Jay shared her view. That proposition was not checked with Professor Jay by Ms Constance or Officials before Ms Constance made her statement despite the fact that there were opportunities in conversations between Officials and Professor Jay for this to have been done. 

8. On receipt of the email from Professor Jay, Ms Constance was on notice that the context in which the words had been used by her was capable of being misconstrued because Professor Jay had expressly stated that she did not have a view about Mr Kerr’s amendment or the position in Scotland. 

9. It is possible that a reasonably informed Scottish listener would have understood Professor Jay’s quoted opinions about inquiries into sexual exploitation to be of general application given the remarks she had made in the radio programme and the fact that Professor Jay is a member of the National Strategy Group in Scotland which had on 14 July 2025 discussed whether there should be a national inquiry in Scotland and had not on the material then available recommended that course. 

10. That said, after the intervention by Professor Jay on 26 September, the question that had not been asked of Professor Jay was answered and the issue then arose as to whether the words used by Ms Constance in her statement had the potential to cause listeners to draw a conclusion which may be wrong. 

11. On 3 October 2025 Officials discussed with Professor Jay what clarification should be made and it was agreed between Officials and Professor Jay on 6 October that the minutes of the National Strategy Group should be used to publish an agreed clarification because those minutes would be public and accessible. The agreed minutes were published on 18 November 2025. 

12. Officials had presented Professor Jay with two options for the clarification that was requested: either a letter from Ms Constance or agreed minutes of the National Strategy Group. Professor Jay chose the latter. 

13. Officials did not advise Ms Constance or Professor Jay that to provide context and to clarify the words used in this way would not correct the Record of Parliament not least because the National Strategy Group is not a Committee of Parliament. It is also the case that some Officials had canvassed an opinion that Parliament may not have been misinformed. 

14. In the ECYP Committee hearing on 17 December, Ms Constance agreed that with the benefit of hindsight she could have expressed herself better when making her statement in Parliament and also agreed that she should have written to Mr Kerr much earlier to offer the same clarification that had been agreed with Professor Jay and to make public Professor Jay’s views. 

15. There were a number of opportunities after Professor Jay wrote on 26 September for clarification and context to be provided to Parliament. Those opportunities included three UQs on 25 October and 19 and 26 November and a further email from Professor Jay on 25 November 2025 which enquired of the Scottish Government’s position relating to the publication of her earlier email, stating that the present position was unsatisfactory to her. 

16. On 1 December 2025 Ms Constance had a telephone call with Professor Jay to apologise to her for involving her in the political debate and to say that she fully understood and respected Professor Jay’s position. Ms Constance ultimately conceded at the Committee hearing on 17 December that the call was official business and the call was set up by Officials. 

17. The consequence is that in accordance with paragraph 8.13 of the Ministerial Code, the telephone discussion should have been attended by an official and it was not. It was noted by Ms Constance herself. That is a breach of the Code albeit that it was an error of judgement in the moment and not deliberate and in that sense inadvertent. 

18. Ms Constance made two attempts to correct the Record on 17 and 18 December, which were not successful. The Presiding Officer answered a Point of Order tabled by Mr Douglas Ross MSP on 17 December to say that no request had been made by Ms Constance to make a statement to Parliament. Ms Constance then wrote to the Presiding Officer on 18 December outlining the steps she had taken. Ms Constance has not made a further statement to Parliament to clarify the words she used on 16 September. The Record of Parliament remains as it was immediately after 16 September i.e. without the clarification that was agreed in the minutes of the National Strategy Group. 

19. The ‘Guidance on the Correction of inaccuracies of information provided in Parliamentary Proceedings’, which is issued by Parliament and is available on its website, provides at paragraphs 5 to 10, inclusive, a process for adding information to the Record of Parliament. Without prejudice to the detail of the guidance, paragraph 5 describes the steps to be taken where a “significant error has been made…which may affect the conclusions listeners would draw from the debate”. That includes the opportunity to request making a statement to Parliament. 

20. We have concluded that the circumstances described in the Guidance were met, namely a significant error which may affect conclusions listeners would draw from the debate. The context, content and detail of the debate were significant and it is common ground that listeners might understand different things from the words used. The words quoted by Ms Constance were those of Professor Jay who did not agree to their use in the context in which they were used. Professor Jay did not share Ms Constance’s view. Ms Constance should have used the process described in the Guidance as soon as possible after receipt of Professor Jay’s email on 26 September. 

21. The Ministerial Code at paragraphs 1.7 c) and d) provides that: 

c) It is of paramount importance that Ministers give accurate and truthful information to the Parliament, correcting any inadvertent error at the earliest opportunity. Ministers who knowingly mislead the Parliament will be expected to offer their resignation to the First Minister; 

d) Ministerial office requires candour and openness. Ministers should demand and welcome candid advice. Ministers should be as open as possible with the Parliament and the public, reflecting the aspirations set out in the Report of the Consultative Steering Group on the Scottish Parliament. They should refuse to provide information only in accordance with the Freedom of Information (Scotland) Act 2002 and other relevant statutes. Ministers should be open and candid with public inquiries; 

22. The issue here is not about honesty or truthfulness. There is no evidence that Ms Constance knowingly misled Parliament nor was the statement inaccurate or untruthful. On the facts of this complaint, Ms Constance committed an inadvertent error in assuming and asserting to Parliament that Professor Jay shared her views. When she became aware of her error, and given the significance the debate has both to Parliament and the public, she should have corrected it by asking to make a statement to Parliament. That is how Parliament describes the process that it wants Ministers to follow in order that accountability of a Minister to Parliament and openness are provided for. 

23. We conclude that the phrase used by Ms Constance that Professor Jay shared her views had the potential to mislead Parliament and should have been corrected in the same terms used in the National Strategic Group minutes as soon as possible after Professor Jay communicated her views on 26 September. 

24. In the circumstances we have described and having regard to the material made available to us, we have concluded that there were two breaches of the Ministerial Code, that relating to the context of the words used on 16 September and the proposition that Professor Jay shared Ms Constance’s views and that relating to the telephone discussion on 1 December. 

25. The principles described in the Code provide for a spectrum of seriousness from inadvertence to knowingly misleading Parliament. We have concluded that the two breaches were inadvertence without any deliberation or intention to mislead. That is at the lower end of the spectrum provided for in the Code and therefore does not call for anything beyond a reprove which should be formal and in writing accompanied by a statement to Parliament by Ms Constance to clarify the words used and thereby add to the Official Record.  

Claire Loftus  
John Manzoni  
Ernest Ryder