Scottish Independence: Legal advice ‘could sway referendum outcome’
SNP ministers will go to court to contest a landmark ruling that they must publicly state if they have asked for advice on whether an independent Scotland could join the European Union.
The Scottish Government’s move came after the Scottish Information Commissioner ruled it had “failed” to comply with the law after a Labour MEP appealed to her over the refusal to say if ministers had sought legal guidance on EU membership.
In what was seen as an ground-breaking ruling, the commissioner, Rosemary Agnew, gave ministers six weeks to say whether they had asked for any legal advice on Scotland joining Europe in the event if a referendum Yes vote.
Last night, the Scottish Government promised it would contest the order, claiming that in refusing to say even if it had advice, it was following the example of the Westminster government.
However, the SNP’s refusal to comply with the commissioner’s order prompted opposition parties to claim First Minister Alex Salmond was set to use taxpayers’ cash to keep secret details vital to the referendum debate.
The SNP government’s appeal could mean a lengthy legal battle, with pro-
Union parties warning last night that could drag on until the 2014 independence referendum, costing hundreds of thousands of pounds. The SNP has
already tried to block the publication of details about the implications of its policies. Taxpayers were charged £103,000 to cover the cost of a legal bid by the government to keep secret details about its local income tax plans in the last parliament.
In her judgment, Ms Agnew also talked about the increasing “urgency” of revealing information as the vote in autumn 2014 draws closer, saying the availability of the legal advice could influence the outcome of the referendum and “inform the public in making their choice”.
However, the Scottish Government insisted it was “longstanding practice” to neither confirm or deny whether it had received legal advice on any policy issue.
A spokeswoman said: “We were surprised by the Information Commissioner’s decision. The approach we have taken on this issue is consistent with the UK government position in a similar case they dealt with under equivalent legislation. We intend to appeal and contest the decision.”
The commissioner’s decision comes after Labour MEP Catherine Stihler tried unsuccessfully to get the information from ministers in the latest battle with the SNP government over the publication of details about the
implications of flagship Nationalist policies.
Ms Stihler accused the SNP of a “shameless cover-up” and of applying for a
“Salmond super injunction” against Scots.
She said: “This shameless cover-up will cost hundreds of thousands of pounds and may not even be settled before the referendum takes place.
“The SNP are using taxpayer’s money to keep anything to do with independence secret. Not only are they refusing to give people facts, they are actively going to court to hide them.
“Either it is bad news for their assertions, or they don’t have any legal advice on EU membership. By arguing that people are not entitled to know such a basic point, the Scottish Government are effectively applying for a Salmond super-injunction against the people of Scotland.”
Ministers sought to rely on section 18 (1) of the Freedom of Information Scotland Act (FOISA), which allows public bodies to block the release of information in limited circumstances, such as national security.
Ms Agnew’s ruling ordered the government to say whether the information about its legal advice was held and either provide it to the Labour MEP or issue a refusal notice. She stopped short of ordering the actual release of any advice.
The ruling said: “The commissioner found that the ministers had failed to deal with Ms Stihler’s request for information by failing to reveal whether the legal advice existed or was held by them.
“If the information exists or is held, she required the ministers to either provide the information or to issue a refusal notice, explaining why it is judged to be exempt from disclosure.”
The Scottish Government has until 17 August to lodge the appeal papers. The case would be likely to be heard in the Court of Session.
The commissioner’s findings also hinted that the government would be compelled to publish much greater detail about its legal advice in the run-up to the referendum. It said: “Additionally, the commissioner recognises that, in September 2011, the independence referendum was still some years away. In her view, the urgency of the need to understand the consequences of any legal advice obtained by the ministers would be considerably less at that time than it would be as the referendum approached.
“In the commissioner’s view, the disclosure of legal advice on this matter could, if it existed and was held by the ministers, inform the public in making their choice in a referendum, and in participating in the referendum debate.”
Search for a job
Search for a car
Search for a house
Weather for Edinburgh
Thursday 23 May 2013
Temperature: 5 C to 10 C
Wind Speed: 23 mph
Wind direction: North west
Temperature: 4 C to 13 C
Wind Speed: 17 mph
Wind direction: North east