THE SCOTTISH Government has clashed with the opposition over the publication of legal advice around a second independence referendum.

Last week, the Information Commissioner, Daren Fitzhenry ruled that ministers should disclose what lawyers have told them about the legality of holding a vote next year.

He said it would “significantly enhance public debate on this issue”.

However, ministers have not yet shared the advice, saying they're considering the "significant" decision and will respond before the commissioner's June deadline to appeal.

In Holyrood, Scottish Conservative chief whip Stephen Kerr accused the SNP of “insulting” taxpayers by forcing them to “pay for secret preparations for a referendum next year they do not want.” 

He asked Constitution Secretary Angus Robertson if they were considering a legal challenge against the commissioner's ruling or if they would “publish this in full".

The minister said: “We've received the decision from the Scottish Information Commissioner and are considering its terms we will respond within the deadlines set by the commissioner. 

“There's a long-standing convention observed by UK government 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”

Mr Robertson said any departure from the convention would be “a significant thing.” 

Mr Kerr said: “We heard some moments ago that Scottish Government civil servants are secretly working on a referendum prospectus. And now we learn that public money may be used to cover up legal advice on a second referendum.

“This government is spending hundreds of thousands of pounds, maybe millions, on its referendum obsession, and refusing to allow any of that to be open to public scrutiny. Does the minister recognise that all of this is an insult to Scottish taxpayers, who are being forced to pay for secret preparations for a referendum next year they do not want?”

“This parliament has been elected with a majority of members to deliver a referendum during this term”, Mr Robertson said. “A fact that Mr Kerr finds very difficult to respect or even acknowledge. It is entirely appropriate for the government to pursue the policies it was elected to do.” 

Labour’s Sarah Boyack said there was “now a clear pattern of behaviour under this SNP government”. 

She told MSPs: “Advice and documents which have a significant impact on the government's priorities are hidden from members of this parliament, and from the people of Scotland, whether it's ferries, the ECHR or the Constitution. 

“Does the Cabinet Secretary not agree that the people of Scotland, regardless of their views, have a right to see this legal advice to enhance public debate in line with the Information Commissioner's ruling? 

“And will he not make arrangements for the immediate publication of this legal advice, given its significance to the whole of the population of Scotland? And what will he do in his work with MSPs to improve the transparency of information?”

Mr Robertson told the Labour MSP: “I can but repeat what I have said to colleagues already, which is it's a significant ruling. It's one that must be considered in the round. And we will reply to that, in good time within the deadlines that have been set. 

“What I find quite interesting about the tone so far, both from the Labour Party and the Scottish Conservative Party is that there seems to be a willingness to depart from the established Customs and Practice in relation to legal advice and it might be helpful in the weeks ahead for both parties to clarify their position on whether they think that government ministers in Scotland or indeed the UK should be able to receive information from their legal advisors with the confidence that has been custom and practice not just for years, but for decades.”

The commissioner’s decision came after a Freedom of Information request from the Scotsman asking for any legal advice provided to ministers on the topic of a second independence referendum in 2020.

Mr Fitzhenry’s decision states: “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.”

He added: “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.”