SNP Government ordered to publish legal advice over independence referendum

The Scottish Government will be forced to publish legal advice they received over a second independence referendum, after a 13-month battle.

A ruling by the Scottish Information Commissioner Daren Fitzhenry said the release of advice into the public domain would “significantly enhance public debate” on the issue.

Officials refused to publish documents through a Freedom of Information on indyref2 saying it would breach legal professional privilege.

After an appeal the information commissioner has ruled that “keeping legal advice relating to a second independence referendum secret actively harms accountability and scrutiny”.

The decision by Fitzhenry comes after Nicola Sturgeon ‘s government was ordered to release legal advice last year it had received in relation to the Alex Salmond inquiry.

The First Minister has committed to holding indyref2 by the end of the first half of the current parliamentary term in 2023, but her plans are expected to be hit by legal challenges.

Lawyers have argued any bill on the constitution will end up in the courts if the UK Government does not grant a vote.

According to The Scotsman, the Scottish Government must release parts of the legal advice it received in relation to another independence vote.

It comes after the government was asked to release any advice it was given on indyref2 in 2020.

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.”

‘Devastating rebuke’

Scottish Conservative leader Douglas Ross took aim at the government saying it was a “failed attempt” to “avoid scrutiny”.

said: “This is a devastating rebuke to the unacceptable culture of secrecy at the top of the SNP Government.

“The advice given to ministers on the legal validity of a second independence referendum is demonstrably in the public interest and the Information Commissioner is right to rule that withholding it was unlawful.

“If the SNP are going to devote large sums of public money deploying civil servants to work on a divisive referendum that the majority of Scots don’t want, we are entitled to know the legal advice they have been given.

“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.

“We saw a similar lack of transparency in the Salmond inquiry and in the ferries scandal, with the gagging orders for senior Ferguson staff and the conveniently-missing documentation on why the Scottish Government ignored CMAL’s warnings over the fateful contract.”

A Scottish Government spokesperson told The Scotsman it had acted “lawfully” during the process.

The spokesperson added: “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.”

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