Scottish Parliament Election - 6 May 2021: guidance for the Scottish Government, its agencies and National Devolved Public Bodies

Note 1: Supporting Ministers During the Election Period

1. The Scottish Government retains its responsibility to govern after the Parliament enters its pre-election recess on the 25 March 2021, and Ministers remain responsible for their portfolios. You should continue to provide official support for Ministers in relation to any essential business that cannot be deferred until after the election. Essential business includes discharging statutory functions, responding to a major incident or public health crisis (including the COVID-19 pandemic), or any case where postponing a decision or activity would prove detrimental to Scotland's interest, or would be wasteful of public resources. Official support for Ministers engaged in essential business includes briefing, communications support, and attendance at any necessary meetings or official engagements. It includes offering advice on new arguments which are likely to be put by others at events which form part of essential business. You should not devise new arguments for use in election campaign debates.

2. Decisions on matters of policy on which the next administration might wish to take a different view from the current administration are expected to be postponed until after the election, provided that such postponement would not be detrimental to Scotland's interest or wasteful of public resources. You can also expect Ministers to be largely engaged in the election campaign and therefore not want to be asked to make decisions on issues during the election period unless it is essential that they should do so.

3. You may check statements for factual accuracy and consistency with established Scottish Government policy. Any work on costing future Government policies must cease from 25 March to 6 May 2021.

Handling Correspondence

4. All correspondence must be handled in accordance with the Freedom of Information (Scotland) Act 2002 - see Note 2 below for more details on this point.

5. Where a request requires a simple description of Scottish Government policy on a particular issue, you should deal with it in the same way as at any other time.

6. Where an enquiry concerns the day‐to‐day management of an agency or national devolved public body, and the Chief Executive would normally reply, they should do so in the normal way, taking care to avoid any matters of political controversy, particularly where they normally have a visible public profile.

7. Where the request relates to commitments included in the governing party's manifesto or asks for a comparison of the policies of different parties, a response should be provided to the correspondent, noting the content and advising they should contact the respective party headquarters directly.

8. Where a candidate has asked for Ministers' views, a reply should be offered to the relevant Minister. You should draft such replies, whether for Private Office or Ministerial signature, with care to avoid political controversy, especially comment or criticism of the policies of other parties. All replies to correspondence from candidates should be copied to PS/First Minister. Any special advisers who remain in post during the election period should be involved in the normal way.

9. Ministers may decide to adapt draft replies prepared in this way to make political points. In all such cases, you can expect the Minister - and not the Private Office - to sign the letter. You should invite the Minister to consider whether the letter should issue in a Ministerial capacity on Scottish Government's letterhead, or whether it should be regarded as being written on behalf of their party. The guiding principle is whether the use of the Scottish Government's letterhead and of official resources would be a proper use of public funds for Ministerial - as opposed to party political - purposes. Where the Minister wishes to refer in the reply to a proposal newly announced in the governing party's manifesto, then the reply must be issued on behalf of the party.

Speed of Response

10. Given the circumstances of an election, you should aim to answer requests from Parliamentary candidates or from the headquarters of any of the political parties for factual information in the possession of the Government, agency or national devolved public body within 24 hours of receipt wherever reasonably possible.

11. It is for the Minister to decide, on a case‐by‐case basis, the timescale for providing replies to requests for their views on an issue. Where requested, you should aim to provide a draft within 24 hours wherever reasonably possible.

12. You can expect the Minister's Private Office to inform the Minister of all incoming correspondence from candidates within 24 hours. This is to ensure that Ministers are aware of such correspondence while campaigning. Where views are requested, Private Office will then indicate to officials the timescale for response.

Correspondence about electors' cases during the election period

13. During the election period, replies to letters from MSPs on behalf of electors which were sent before Parliament entered into its pre-election recess and replies to letters from Parliamentary candidates should take into account the fact that, if they become public knowledge, they will do so in the atmosphere of an election and are more likely to become the subject of public comment. Correspondence should be cleared as soon as possible.

14. Some additional points:

• MSPs will continue to be MSPs until 5 May 2021 for the reasons set out in Note 5 of this guidance;
• All candidates are on an equal footing. Ministers will usually reply to letters written by MSPs on behalf of a constituent before Parliament enters its pre-election recess. Ministers may also wish to reply to such letters written after Parliament enters its pre-election recess, particularly when the correspondence relates to an ongoing case;
• Private Secretaries will normally reply to letters from Parliamentary candidates who are not MSPs before Parliament enters its pre-election recess;
• The main consideration must be to ensure that the citizen's legitimate interests are not prejudiced. But it is quite possible that a personal case could become politically controversial during the election campaign, and replies should be concise and give no room for misrepresentation;
• Replies sent after election day should normally be sent to the candidate who wrote the letter. Where the candidate has been unsuccessful, a copy of the response should be sent to the new constituency (or regional) MSP, unless it is clear from the correspondence that this would be unwelcome to the member of public concerned.

Further information

15. For further information about official support for Ministers, please contact Cabinet Secretariat:

• Robin Benn or
• Duncan Beamish

For further information about handling Ministerial correspondence, please contact the Public Engagement Unit:

• Kevin McArthur