Scottish independence: Legal advice on second referendum would have been made public long ago if ministers were more committed to democratic principles – Scotsman comment

Any government that repeatedly tries to keep secrets from its electorate should be a cause of concern for all those who care about the health of democracy.

Independence supporters, and everyone else in Scotland, deserve to know the truth about the Scottish Government's legal advice on a second referendum (Picture: Jeff J Mitchell/Getty Images)
Independence supporters, and everyone else in Scotland, deserve to know the truth about the Scottish Government's legal advice on a second referendum (Picture: Jeff J Mitchell/Getty Images)

And in Scotland the alarm bells have been ringing over a number of attempts to hide important information, such as the Covid death tolls in individual care homes and hospitals; modelling of how the virus was likely to spread; a report into harassment complaints made against Alex Salmond; and crucial information about the Ferguson Marine ‘Ferrygate’ scandal.

Now, after a struggle lasting more than a year, The Scotsman has won a ruling that the Scottish Government broke freedom of information law when it refused to publish aspects of the legal advice it received about holding a second independence referendum.

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Ministers had essentially argued that such advice should be covered by the convention that legal advice to a client is confidential and that making it public might make lawyers in future cases more circumspect about their opinions and therefore provide less effective counsel.

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These are entirely reasonable arguments, but there is a significant difference between a lawyer working for an individual and one employed by the government. In the latter case, client confidentiality must be balanced against the public interest and people’s right to know what their elected leaders are planning and doing, and on what basis.

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Indeed, the Scottish Ministerial Code recognises this, making clear that legal advice to the government may be disclosed if it affects a “large number of people”. And as he ruled the advice about Indyref2 must be published by June 10, Information Commissioner Daren Fitzhenry said quite rightly that disclosing it would “significantly enhance public debate” on an issue of “fundamental importance... to all individuals living in Scotland”.

So while we understand the Scottish Government’s arguments for refusing to disclose the advice, they do not stand the test of what truly matters in a democracy.

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It would be bad enough if this was a one-off offence, but their repeated attempts to avoid public scrutiny are creating a distinct impression that ministers consider it to be an irritant or an impediment to the business of government, rather than an important and internationally recognised part of the process.

In 2002, the United Nations Commission on Human Rights declared a number of “essential elements of democracy”, including free speech, free and fair elections, the rule of law, respect for human rights, the independence of the judiciary, and – of course – “transparency and accountability in public administration”. After all, if governments keep secrets from their citizens, how can people cast their votes in an informed way?

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One concern is that SNP ministers are so committed to the cause of independence that they might be prepared to compromise or even ignore such democratic principles as they pursue their ultimate aim.

But they should be aware that when voters think about independence they will obviously wonder what kind of country Scotland outside the UK would be. A Scottish Government that seeks to hide information from the public hardly inspires confidence about what would happen in the event that it assumed full control of the nation’s affairs.

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The Scotsman has worked for 13 months to ensure that the legal advice to the Scottish Government about a second independence referendum will be made public because it really does matter and voters deserve to know what ministers have been told. And we will continue to try to ensure openness is a reality in Scotland’s democracy.

However, while journalists are supposed to be tenacious in their pursuit of the truth, it should not have been so difficult, taken so long, or required a ruling from the Information Commissioner.

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And it would not have done if ministers, and perhaps also the civil servants advising them, had a greater commitment to the best system of government ever devised – democracy.

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