Supreme Court decision on the independence referendum: FOI release

Information requested

1. Has there been any change in the policy in relation to the allocation of resources and support to Ministers for the purposes of developing the case for Scottish independence in light of the decision in last week’s Supreme Court case? If so, what is that change?
2. If not, please set out the legal and policy basis upon which you have reached the decision that continued allocation of resources and support to Ministers for the purposes of a developing the case for Scottish Independence is justified in light of:

• the decision of the Supreme Court providing legal certainty that the Scottish Government has no power to hold an independence referendum without the consent of the UK Government through the mechanism of Section 30 of the Scotland Act 1998; and
• the clear policy of the UK Government that there will be no Section 30 order and consequently no referendum.

3. What do you consider to be the legal framework which governs the provision of civil service support and use of resources to further the aims of the Scottish Government?
4. We note the obligation on you, and all civil servants within the Scottish Government, under the Civil Service Code to ‘carry out your fiduciary obligations responsibly (that is make sure public money and other resources are used properly and efficiently)’ Please identify all current guidance, advice or other documents created either by the UK Civil Service or by you or your colleagues or predecessors within the Scottish Government which explains how that requirement is to be met both generally, and specifically in relation to the question of a second referendum on Scottish Independence.
5. Under the Civil Service Code, there is a requirement on all civil servants that they do not ‘act in a way that is determined by party political considerations, or use official resources for party political purposes’. Please provide all guidance, directions, staff communications and other documents outlining how that requirement is to be implemented and understood by civil service staff engaged in the preparations of a case for Scottish Independence.
6. Can you identify all provisions of the Civil Service Code and the Civil Service Management Code which in your view govern your decision making in relation to the authorisation and use of civil service resources for the purpose of further preparations of documents, support for ministers, media activity and all other expenditure related to developing the case for Scottish Independence?
7. To whom are complaints about your decision-making and performance properly addressed within the UK Civil Service?
8. What specific guidance was drafted and/or implemented by either the UK Civil Service or the Scottish Civil Service in relation to resources and support being provided by civil servants to Ministers prior to the Edinburgh Agreement in October 2012 in relation to Scottish Independence?

Response

Question 1 and 2

There has been no change in policy. Our policy continues to be to allocate resources as economically, efficiently and effectively as possible.

In the Resource Spending Review 2022, the Scottish Government committed to making £20 million available to fund the cost of a referendum on Scottish independence. The decision of the Supreme Court, however, means that no referendum can now be held next year. Scottish Ministers still believe that the people of Scotland must have the opportunity, by lawful and constitutional means, to make a choice about their constitutional future, to fulfil the mandate given to the Scottish Parliament in last year’s election. If there is an opportunity for a lawful referendum on independence to be held, the Scottish Government will make financial provision for that to happen.

However, in order to make full use of the resources available, and in order to help the most vulnerable citizens, the Deputy First Minister has announced that the money earmarked for a referendum on independence will be used to make provision to extend the fuel insecurity fund into next year.

It continues to be appropriate for the civil service to support Ministers in the delivery of their policy priorities. As noted below, it is the constitutional role of the Civil Service to support the elected government of the day in developing and implementing its policies. That is the case for work on constitutional reform as it is for the rest of the government’s work.

Question 3

Part 1 of the Constitutional Reform and Governance Act 2010 provides the statutory basis for management of the civil service. Section 5 of the Act requires a civil service code to be published, and section 7 requires that code to provide that civil servants must carry out their duties for the assistance of the Scottish Government “as it is duly constituted for the time being, whatever its political complexion.”

Section 51 of the Scotland Act 1998 provides for the staffing by the civil service of the Scottish Administration, and section 1 of the Civil Service (Management Functions) Act 1992 permits functions conferred under the Constitutional Reform and Governance Act 2010 to be delegated to the Scottish Ministers.

The Public Finance and Accountability (Scotland) Act 2000 sets out rules for spending money, accounting requirements, accountability of officials and auditing arrangements. Section 14 of the Act sets out duties on the Principal Accountable Officer for the Scottish Administration, including to ensure the “propriety and regularity of the finances of the Scottish Administration” and to ensure that the “resources of the Scottish Administration are used economically, efficiently and effectively.”

Quesion 4

Before answering this question, it may be useful to set out some information about the structure of the civil service. The civil service supports the UK Government, the Scottish Government and the Welsh Government. There is a separate Northern Irish civil service and a separate diplomatic service.

Those civil servants who support the Scottish Government are led by the Permanent Secretary to the Scottish Government, who is the Principal Accountable Officer for the Scottish Administration.

The Scottish Public Finance Manual is issued by the Scottish Ministers to provide guidance on the proper handling and reporting of public funds. It is available on the Scottish Government website at https://www.gov.scot/publications/scottish-public-finance-manual/. Guidance issued by HM Treasury in respect of managing public money is available on the UK Government website at https://www.gov.uk/government/publications/managing-public-money. Guidance issued by HM Treasury on Accounting Officer Assessments is available on the UK Government website at https://www.gov.uk/government/publications/accounting-officer-assessments.

Internal guidance on the use of public resources is available to civil servants working in the Scottish Administration. I enclose a copy of information you requested.

The guidance set out above applies to all government activity, including the use of resources to support Ministers’ policies in respect of the constitution. All civil servants are required to comply with the Civil Service Code and the Scottish Public Finance Manual as part of their jobs. No specific guidance has therefore been issued on this matter. This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have some of the information you have requested.

Question 5

All civil servants are required to comply with the Civil Service Code as part of their terms and conditions of employment. It is available publicly on the Scottish Government website and on the internal Scottish Government intranet.

Internal guidance was made available to civil servants in respect of consultations conducted in 2012 on the subject of Scottish independence, in respect of the 2014 referendum, and in respect of the launch of the ‘Building a New Scotland’ series. I enclose a copy of information you requested.

Question 6

The Scottish Civil Service Code is available on the Scottish Government website at https://www.gov.scot/publications/civil-service-code/.

The Civil Service Code as a whole is relevant to all work civil servants do, including supporting Ministers in work relating to Scottish independence.

The Civil Service Management Code is available on the UK Government website at https://www.gov.uk/government/publications/civil-servants-terms-and-conditions.

The management code sets out regulations and instructions related to civil servants’ terms and conditions of service, including at 4.1.1 an explanation that, subject to the Civil Service Code, civil servants’ duties are to the duly constituted Government, and at 4.1.6 a requirement that the Civil Service Code is incorporated into the conditions of service of staff.

All civil servants working on matters related to Scottish independence are employed under the terms of the Civil Service Management Code.

Quesion 7

Complaints about the Permanent Secretary may be addressed, in the first place, to the Permanent Secretary himself. He is accountable for his decision-making and performance in a range of ways.

He is accountable to Scottish Ministers for his performance and for the performance of the civil service that supports the Scottish Government.

He is the Principal Accountable Officer for the Scottish Administration. Under section 14 of the Public Finance and Accountability (Scotland) Act, the Permanent Secretary is answerable to Parliament for the exercise of the functions set out in that section.

And the Permanent Secretary, like all civil servants supporting the Scottish Administration, is part of the UK-wide Civil Service, and is line-managed by the Head of the Civil Service, Simon Case.

Quesion 8

No specific guidance on resources and support provided in relation to independence was prepared (though you will wish to note the guidance being released in relation to your question five). This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have some of the information you have requested.

You may consider relevant to this question the two attached letters from the then Head of the Civil Service, Gus O’Donnell, concerning civil servants supporting Scottish Ministers’ policy on independence.

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FOI - 202200332779 - Information release

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