The Scottish Ministerial Code
Mr Hamilton is an Independent Adviser to the First Minister on the Scottish Ministerial Code. In this role, he was asked by the Deputy First Minister to investigate whether there had been any breach of the Ministerial Code by the First Minister, the nature of any such breach and, if a breach had occurred, to advise on the appropriate remedy or sanction.
Mr Hamilton submitted his report to the Deputy First Minister on 22 March 2021. It was published on the Scottish Government website the same day.
Mr Hamilton found no breach of the Ministerial Code by the First Minister.
Mr Hamilton was asked in his remit “to consider and offer views on whether the Ministerial Code might need revision to reflect the terms of the procedure and the strict limitations it places on the involvement of the First Minister in cases which fall to be considered under the procedure”. He noted in his report that he had decided to defer consideration of this element, in view of the urgency of addressing the alleged breaches of the Code. He suggested that this consideration be taken forward jointly with the other independent adviser, after any changes are made to the procedure, and that this might also include matters relating to special advisers referred to in Chapter 16 of his report.
The Scottish Government accepts Mr Hamilton’s proposal for further consideration of the Ministerial Code following the current work on the amended procedure, and will cooperate with the Independent Advisers on this. We will keep both advisers informed on work on an updated procedure to allow them to plan how to take this forward.
The Committee’s remit included consideration of actions in relation to the Scottish Ministerial Code. However, the Committee’s report states clearly that the investigation undertaken by James Hamilton was the most appropriate place to address the question of whether or not the First Minister breached the Scottish Ministerial Code, and that the Committee did not consider there would be merit in attempting to replicate this work.
The Committee nevertheless did make some comments inviting the First Minister to review the content and application of the Ministerial Code, suggesting specifically that paragraph 1.7 could be revised and strengthened, and arguing that future referrals to the Independent Advisers should invite them to review the referred actions under the Code as a whole rather than specific parts.
Ms Dunlop’s report also makes some comments relating to the Scottish Ministerial Code. Her report provides a comparative analysis of the requirements under the Scottish Ministerial Code, as compared with equivalent provision in the UK, Welsh, and Northern Irish Governments.
She highlights that the definition of an MSP includes a former MSP, as a result of the Scottish Parliamentary Standards Commissioner Act 2002, and compares this with the Ministerial Code, which only applies to serving Ministers. She comments that alignment of the position under the Ministerial Code with the position under the Code for MSPs appears desirable.
The First Minister will, as is usual following an election, give consideration to the publication of a revised Code. The timing of that revision will reflect further consideration by the independent advisers proposed by Mr Hamilton. This consideration will take account of the comments made by the Committee and by Ms Dunlop.
The Scottish Ministerial Code: Scottish Government actions
- Cooperate fully with the Independent Advisers on the Ministerial Code in their proposed further considerations and keep them informed about work on the updated procedure; and
- Ensure that the comments from the Committee, Ms Dunlop and the Independent Advisers are considered as part of any revision to the Ministerial Code.
 Report of the Independent Adviser on the Scottish Ministerial Code into the self-referral by the First Minister Ms Nicola Sturgeon into allegations that she breached the Code in respect of meetings and discussions with the former First Minister Mr Alex Salmond between 29 March 2018 and 18 July 2018 and related matters
 James Hamilton report page 6