Ministers told to release legal advice on second independence vote

The Scottish Information Commissioner Daren Fitzhenry said decisions relating to the publication of legal advice made during the Alex Salmond inquiry in Holyrood and the “obvious” and “significant” public interest on the proposed vote meant some of the material should be handed over.

They have been given to June 10 this year to release the documents.

READ MORE: No Referendum Bill before council elections on May 5

First Minister Nicola Sturgeon wants to pass legislation in Holyrood allowing indyref2 to take place by the end of 2023, Covid permitting, and has instructed civil servants to update the blueprint for independence. It is not known when the bill will be introduced.

Her plan follows the refusal by Boris Johnson to agree to transfer powers to the Scottish Parliament to hold a legally watertight referendum, which was the process followed ahead of the 2014 vote.

READ MORE: Douglas Ross: Boris Johnson will not be in Scotland before May 5

However, constitutional lawyers are split over whether the Scottish Parliament has the power to pass such legislation, with many believing the legality of the referendum bill will be challenged by the UK Government in the Supreme Court.

Ahead of the Holyrood election in May last year, the Scottish Government was forced to release legal advice relating to their unsuccessful defence against the judicial review brought by the former first minister over their investigation into complaints of sexual harassment, which Mr Salmond denied.

READ MORE: Plans to hold independence vote to be unveiled imminently, says Patrick Harvie

The Scottish Government admitted its probe was unlawful, unfair and “tainted by apparent bias” leading to a Holyrood investigation into what went wrong. During this probe ministers were forced to release the legal advice they were given during their investigation into the complaints made against Mr Salmond.

In his ruling Mr Fitzhenry said that the decision to release legal advice from the investigation into the complaints against Mr Salmond demonstrated ministers recognised there could be “compelling public interest reasons for disclosure of legal advice”.

He concluded aspects of the legal advice on indyref2 would fall under the same “exceptional circumstances” in which public interest outweighed legal professional privilege.

The Government had been initially asked for any legal advice to ministers or provided by the civil service on the topic of a second independence referendum in 2020 by the Scotsman. The Herald also submitted a freedom of information request to ministers to obtain any legal advice they had received on indyref2.

READ MORE: SNP and Greens to draw up joint independence plans for 2023 referendum

But officials refused to release any information to both papers, claiming disclosure would breach legal professional privilege – a convention that ensures confidentiality of legal advice.

Mr Fitzhenry accepted the “considerable, in-built public interest” in allowing ministers to receive “full unhindered legal advice”.

However, he agreed with submissions from The Scotsman this was “not inalienable”, adding the Scottish Ministerial Code sets out there are exceptions to this convention, including when the legal advice may affect a “large number of people”.

Mr Fitzhenry wrote: "The Commissioner notes the applicant’s view that keeping legal advice relating to a second independence referendum secret actively harms accountability and scrutiny and would be counter to the public interest.

"Given the fundamental importance of Scotland’s future constitutional relationship to all individuals living in Scotland, and its fundamental importance to political and public debate at the time of the request and requirement for review, the Commissioner is satisfied that disclosing this information would significantly enhance public debate on this issue.

"While the ministers have expressed concern that disclosure of legal advice in this case would have the effect of future legal advice being more circumspect or less effective, the Commissioner acknowledges the point made by the applicant that the ministers’ own decision to disclose legal advice relating to the Alex Salmond case has already created such an environment, if the risk were there, and a further disclosure of legal advice which is of much greater public interest is unlikely to create any further difficulty.”

Douglas Ross, leader of the Scottish Conservatives, said the Commissioner's decision was "a devastating rebuke" to the Scottish Government.

“The failed attempt by Nicola Sturgeon and Co to hush this up is just the latest example of a Government prepared to go to any lengths to avoid scrutiny," he added.

Sarah Boyack, the constitution spokesperson for Scottish Labour, said: “This ruling is a another rebuke for this secretive SNP Government, who’ve been caught once again trying to withhold information and stifle scrutiny.

“The public have a right to see this information about their future and the SNP must release it right away, but more importantly they must stop wasting time, energy and money on this separatist distraction.

“People in Scotland need their Government to be focused on recovering from the pandemic and tackling the cost-of-living crisis – not tying themselves in legal knots in an attempt to hide the holes in their case for a divisive referendum.”

The Scottish Government spokesperson said: “We have received the decision from the Scottish Information Commissioner and are considering its terms.

“However, we are clear the Scottish Government has acted lawfully in its application of freedom of information legislation.

“There is a long-standing convention, observed by UK Governments and Scottish Governments, that government does not disclose legal advice, including whether Law Officers have or have not advised on any matter, except in exceptional circumstances.

“The content of any such advice is confidential and subject to legal professional privilege. This ensures that full and frank legal advice can be given.”

On Wednesday, Constitution Secretary Angus Robertson gave evidence to the Independent Commission on the Constitutional Future of Wales.

He said: "Wales is having its own constitutional discussion, to which I am happy to contribute today.

"That, of course, is a matter for the people of Wales but the Scottish Government is clear that the best future for Scotland is to become an independent country and the opportunity to enter into an equal partnership with the rest of the UK.

"As the Welsh Government says, the UK is a voluntary association of nations.
"The people of Scotland, therefore, have the right to decide their own future, particularly given the huge and damaging impact of Brexit."