4. THE SCOTTISH CABINET
4.1 The Scottish Cabinet reconciles Ministers' individual responsibilities with their collective responsibility (see paragraphs 1.2-1.5 and 2.1-2.7 above) and is the ultimate arbiter of all policy on devolved matters.
Membership of the Cabinet
4.2 The Scottish Cabinet consists of the First Minister, the other senior Ministers ('Cabinet Secretaries') and the Minister for Parliamentary Business. Junior Ministers (appointed by the First Minister under the terms of Section 49 of the Scotland Act 1998) are not members of the Cabinet. The Lord Advocate is not a member of the Cabinet and does not normally attend meetings, although she receives all Cabinet papers. However, the Lord Advocate (or the Solicitor General as the Lord Advocate's deputy) retains the right to address Cabinet where he/she considers it appropriate to do so and will attend where the Cabinet is to discuss a matter relating to his/her retained functions or requires his/her advice on a particular issue.
4.3 If a Cabinet Secretary has permission to be absent from Cabinet (see paragraph 4.7 below) and the agenda for the meeting in question includes one or more items in which the Minister who has permission to be absent has a significant portfolio interest, the Cabinet Secretary may, if he/she considers it appropriate, seek permission from the First Minister for one of his/her Junior Ministers to attend Cabinet in his/her place. All such requests are considered on their merits and, if it is agreed that it would be appropriate for the Junior Minister to attend, a further decision needs to be taken on whether he/she should attend for the whole of the Cabinet meeting or only for the agenda item(s) in which the absent Cabinet Secretary has a significant interest. The final decision as to whether or not a substitute should attend Cabinet will in each instance rest with the First Minister.
4.4 Details of the membership of the Scottish Cabinet are set out on the Scottish Government website.
Meetings of the Cabinet
4.5 While the Scottish Parliament is in session, the Cabinet meets weekly - usually on a Tuesday afternoon. During recess, the Cabinet will not routinely meet but special arrangements may well be made, for example, over the summer period. Details of meeting dates can be obtained from the Cabinet Secretariat.
4.6 Meetings of the Cabinet take precedence over all other Ministerial business. There are however occasionally exceptional circumstances ( e.g. Parliamentary business, business overseas or meetings with the European Commission or with UK Ministers) which mean that a Cabinet Secretary may have to be absent. Any absences must be approved by the First Minister. If the relevant Cabinet Secretary is due to take part in Government business overseas then in putting a request for permission up to the First Minister they should also indicate their proposed absence from Cabinet. This will give the First Minister early opportunity to consider whether he wishes to invite another Minister to attend Cabinet as a substitute. (As it is the First Minister's prerogative to decide who attends Cabinet, he will decide when a substitute is necessary.) Requests for permission to be absent must be made at the earliest opportunity and by means of a personal minute from the Cabinet Secretary to the First Minister. Minutes seeking permission to be absent from Cabinet should be copied to the Permanent Secretary and to the Cabinet Secretariat.
4.7 The Cabinet should normally be invited to consider all matters which significantly engage the collective responsibility of the Government including, as a general rule, any proposal which involves a change in the Government's agreed objectives or priorities, a change in the general allocation of public expenditure, primary legislation (see paragraph 2.9 of Scottish Ministerial Code) or the making of a statement to the Parliament on a significant or sensitive policy issue. (More detailed guidance on arrangements for securing collective agreement for proposals involving primary legislation is set out in Annex A.)
4.8 The Cabinet should also be invited to consider any other matter on which a Cabinet Secretary wishes to have the advice of his/her Cabinet colleagues. Where there is a difference of view between Ministers, the matter should not be referred to the Cabinet until other means of resolving it have been exhausted, including discussions between the Ministers concerned if necessary.
4.9 It is clearly impossible to give a precise definition of what should and should not be referred to the Cabinet for decision and the above should therefore be regarded as a guide only. As a general rule, however, Cabinet Secretaries should put before their colleagues the sorts of issues on which they themselves would wish to be consulted. In cases of doubt, the advice of the Cabinet Secretariat should be sought.
Clearing Proposals with the Cabinet in Correspondence
4.10 Not all issues that require to be decided by the Cabinet need to be discussed at a Cabinet meeting. Many such issues can be dealt with in correspondence - that is, as an item of 'Cabinet Correspondence'. Just as there is no precise definition of issues requiring Cabinet consideration, so there are no absolute rules about what should be handled through correspondence rather than discussed at a Cabinet meeting. There are however a number of reasons why a paper requiring Cabinet consideration might be handled through correspondence, such as seeking clearance for the launch of a consultation exercise. Cabinet Secretariat should be contacted for advice.
Preparing the Agenda for Cabinet Meetings
4.11 The Cabinet Secretariat should be given as much notice as possible of any business likely to require discussion at a meeting of the Cabinet. This assists in the planning of agendas for meetings.
4.12 Where a Cabinet Secretary wishes to brief the Cabinet orally on an issue ( e.g. a breaking news issue) which is not included on the agenda for the meeting in question, his/her Private Office should alert the Cabinet Secretariat as soon as the need for the issue to be raised at Cabinet has been identified.
4.13 The Cabinet Secretariat maintains a running list of potential Cabinet business - including items which are likely to be dealt with in correspondence. It does so by drawing intelligence from side copies of minutes to Ministers, through feedback from the Strategic Board and Cabinet meetings and from informal contacts with staff throughout the office. Every few months, Cabinet Secretariat also asks Directorates formally to identify potential Cabinet business in the period ahead.
4.14 The Cabinet Secretariat prepares a draft agenda for each meeting of the Cabinet and submits it to the First Minister for approval.
Preparing Papers for the Cabinet
4.15 Where it is clear that an issue will require discussion at a Cabinet meeting, the lead Directorate should prepare a Cabinet paper. The paper should normally be approved by, and submitted in the name of, the Cabinet Secretary with functional responsibility for the issue dealt with in the paper. Where that issue spans the interests of 2 or more Cabinet Secretaries, the paper should normally be submitted jointly by the relevant Cabinet Secretaries.
4.16 Officials preparing papers for the Cabinet should always discuss the proposals with colleagues in other Directorates with an interest and reflect the results of those discussions in the 'Consultation' section of the paper. Where a paper involves proposals which have financial implications or which could raise issues of financial regularity or propriety, the paper must be agreed with Finance Directorate. The Law Officers must also be consulted - via the Scottish Government Legal Directorate ( SGLD) - before the Government is committed to critical decisions involving legal considerations (see Annex B).
4.17 Where appropriate, officials preparing Cabinet papers should also ensure that Cabinet are enabled to take account of the perspective of the UK Government and/ or the other devolved administrations, where consultation is required under the terms of the Memorandum of Understanding or an associated concordat or there are other reasons for taking the view that Cabinet would be assisted by information about views from those sources. In seeking such input to Cabinet's consideration of an issue, draft Cabinet papers must not be shown to anyone outwith the Scottish Government.
4.18 The information shared with those in other administrations for the purposes of consultation should focus on the options under consideration by Ministers and should not disclose Ministers' thinking, which would be premature in advance of Cabinet's consideration. In some cases, suitably annonymised extracts from the material being prepared for Cabinet may be an appropriate form in which to share information.
4.19 In planning timetables for the preparation and consideration of Cabinet papers (and items of Cabinet Correspondence), and for the subsequent announcement of policy decisions etc, Ministers and officials should take appropriate account of the need for Ministers to secure and retain the support of the Government's Parliamentary Group.
4.20 A paper for Cabinet should be as concise as is practicable with additional background material in supporting annexes. The paper should explain at the outset what the issue is, should outline the main considerations Cabinet Secretaries will need to keep in mind in reaching a decision, and should conclude with a clear statement of the decisions sought. Where, exceptionally, a lengthy paper is necessary, it should include a summary. The Cabinet Secretariat will provide advice on the preparation of Cabinet papers.
4.21 The Cabinet Secretariat is responsible for collating and circulating papers for Cabinet. Cabinet papers need to be circulated in sufficient time to enable Cabinet Secretaries to read and digest them. The aim is therefore to circulate the cleared papers on the Friday prior to the Tuesday Cabinet meeting. Papers on particularly complex issues may need to be circulated further in advance. If it becomes clear that insufficient time has been allowed for Cabinet Secretaries to consider any paper, discussion of the paper may need to be postponed.
4.22 Cabinet papers should therefore be passed to the Cabinet Secretariat, in final form and approved by the relevant Cabinet Secretary(s), no later than close of play on a Wednesday for meetings taking place the following Tuesday.
4.23 Papers which are not submitted by that deadline will normally be removed from the agenda for the Cabinet meeting in question unless:
(a) A different deadline for submission of the paper in question has been agreed with the Cabinet Secretariat; or
(b) The Cabinet Secretary responsible for the paper minutes the First Minister seeking his agreement that there are exceptional circumstances that justify the late paper remaining on the agenda for the following week's meeting. The minute should explain why the paper is late, why it must be considered at that particular meeting, and when it will be submitted.
Recording the Decisions Reached
4.24 The Cabinet Secretariat arranges and services all meetings of the Cabinet - and this includes the preparation of minutes of the meetings. The minutes are limited to a summary of the key issues as set out by the Cabinet Secretary introducing the paper, the conclusions reached and such summary of the discussion as is necessary for the guidance of those who have to take action. The minutes do not normally attribute to particular Cabinet Secretaries the opinions expressed in discussion.
4.25 Copies of the full minutes are sent to the members of the Cabinet, the Lord Advocate, the Solicitor-General, Junior Ministers, members of the Strategic Board, certain special advisers, The Queen's Private Secretary and The Duke of Rothesay's Private Secretary. The offices of the Directors General are responsible for forwarding copies of the Cabinet minutes (and agendas) to members of the Strategic Board and for passing relevant extracts from the Cabinet minutes to any other officials in their Directorates with a 'need to know' - particularly those who are responsible for pursuing action points highlighted in the minutes. (Full sets of Cabinet papers are put into Public Folders in outlook and are held there for up to a year. Members of the Strategic Board have access to that archive if they need to refer to specific papers.)
4.26 The Cabinet minutes act as the official record of discussion, and Ministers will be expected to adhere to the decisions outlined therein. It is therefore particularly important that anomalies or misinterpretations are corrected. Any suggestions for amendments to the minutes must reach the Cabinet Secretariat no later than 24 hours before the next Cabinet meeting.
4.27 Decisions made by the Cabinet will usually require officials to take action to give effect to the decision. Where immediate action is required, the Cabinet Secretariat will ensure that a relevant senior official is notified straightaway. Where urgent action has to be taken a senior official may ask the Cabinet Secretariat for an advance copy of the relevant section of the (draft) minutes. In order to facilitate decision making the Cabinet Secretariat will produce a brief outline of actions agreed by the Cabinet and circulate this to relevant officials, as soon as possible after the Cabinet meeting.
Protecting the Confidentiality of Cabinet Papers Etc
4.28 All Cabinet papers (including minutes and agendas etc) are protectively marked documents. As a matter of practice, they must never therefore be made public and should be distributed strictly in accordance with the 'need to know' principle. They should be handled separately from other paper and not placed on Directorate files in Objective. A record should be maintained of those who have seen Cabinet papers. Cabinet papers which are no longer required for current reference should be disposed of as confidential waste. (The Cabinet Secretariat maintains a full set of Cabinet papers and, where appropriate, can provide access to previous papers as and when required.)
4.29 Other than in the context of a formal media briefing on the day, Ministers and officials should not normally disclose publicly whether a particular subject has or has not been discussed by the Cabinet, nor whether a particular Cabinet Secretary attended any meeting.
4.30 Similarly, the fact and content of opinions or advice given by the Law Officers must not be disclosed publicly without their authority.
4.31 The provisions of the Freedom of Information (Scotland) Act 2002 apply to all information held by the Scottish Government and therefore also apply to Cabinet and Cabinet Sub-Committee information. The working assumption is that the proceedings of the Cabinet (or any Cabinet Sub-Committee or other Ministerial group) are exempt from disclosure under the 2002 Act, subject to consideration of the public interest. There is, however, a strong public interest in maintaining the confidentially of Cabinet proceedings and the above working assumption on Cabinet and Ministerial group information should be referred to when handling all requests for such information.