My Way Code

THE First Minister's use of the Ministerial Code has been much in the news since the New Year.

But overlooked - until now - has been a 630-page document dump by the Scottish Government on the topic just before Christmas.

Containing background memos on the Code's composition, it was released after a request under Freedom of Information.

Rather than subjecting the FM to rigorous examination, the material shows the Code has in fact been crafted to help him pick and choose when he is investigated - or whether he is investigated at all.

Here's the story

EXCLUSIVE

Tom Gordon

Paul Hutcheon

ALEX Salmond is facing demands for a judge to oversee his behaviour in office, after it emerged the Ministerial Code of Conduct had been kept deliberately vague to help the First Minister choose whether to investigate himself.

A previously secret government memo reveals that details of the investigative process, including the types of alleged misconduct to be checked, were “intentionally not included on the face of the code” to ensure the First Minister could “exercise his own judgement” in each case.

Keeping the process opaque was “also intended to limit the number of spurious complains from third parties,” according to the document.

Opposition parties said the memo exposed the code as a sham which allowed Salmond act as “judge and jury” in his own investigations.

At present, Salmond alone decides whether or not to refer himself to one or more handpicked “independent advisers” on the code if there is an allegation of misconduct against him.

He has referred himself six times since March 2009, and been cleared in every case, the most recent of which was published on January 10.

In the latest instance, Sir David Bell cleared Salmond of breaching the code after he appeared to say on TV last year that the SNP government had specific advice from its law officers on the position of an independent Scotland in the EU.

It later turned out that no such advice existed.

Salmond’s comments were “muddled and potentially confusing”, but did not amount to a breach of the Miinsterial Code, Sir David concluded.

He also recommended that the section of the code covering legal advice should be made clearer.

Now there is evidence that, rather then imposing oversight on the First Minister, the Code has in fact been tailored to help him avoid scrutiny if he chooses. 

Buried among 630 pages of background information on the code released by the Scottish Government just before Christmas is a memo to the First Minister making the point explicitly.

Marked “restricted”, it was written by Robin Benn of the Cabinet and Corporate Business Secretariat on 11 June 2011, and addressed to Salmond and his then Parliamentary Business Manager Bruce Crawford. 

At the time, the code was being updated for the start of the new parliament.

That's handy... how the Ministerial Code intentionally leaves bits out

Referring to the independent advisers, Benn wrote: “You will also recall that details of the process whereby the First Minister will refer matters to the independent advisers (and the types of issues that he may consider it appropriate to pass to them for consideration) were intentionally not included on the face of the Code itself.”

The word “not” was emphasised in bold type.

Benn went on: “We have retained this principle, which should ensure that the First Minister has the appropriate opportunity to exercise his own judgement [sic] on a case-by-case basis, and is also intended to limit the numer of suprious complaints from third parties.”

The full memo is available here (press the 100% icon top left). 

Scottish LibDem leader Willie Rennie said: “These documents prove that accountability of the First Minister within government has become a sham.

“The First Minister has been personally involved in drawing up the code by which is he is judged, and then deciding which cases he’ll refer himself to his hand picked jury. This kind of sinister scheming turns people off politics.”

First Minister: Not guilty again

Labour MSP Paul Martin said: “This makes further mockery of the Ministerial Code. Not only does the First Minister decide the judges, he also gets to decide if he gets charged and what with. It is now in everyone’s interests to overhaul this system and have it policed by an independent judge that we can all have faith in.”

A spokesman for the First Minister said: “This First Minister is the first person holding the office to establish an independent panel to investigate complaints – when Labour and LibDem members held the post they thought it was right to investigate themselves. It is absolutely right that the ministerial code should not give carte blanche to endless, spurious and politically-motivated complaints against the First Minister or any other minister.”