Law officer advice around competence of Scottish independence referendum Bill 'not in public interest' to publish

Scottish ministers have claimed it is not in the public interest to say whether or not law officers have confirmed the Bill for a second independence referendum is within the powers of Holyrood, it can be revealed.

Scottish Government officials also refused to release any briefing papers presented to ministers on the issue, claiming it would impact the way civil servants provide advice and was legally privileged.

Opposition politicians said the response was about “saving the ministers’ blushes” and may have “revealed some uncomfortable truths” around the Bill’s legality.

Pro-independence activists wave Scottish Saltire flags as they march from Holyrood to the Meadows in Edinburgh. (Picture: Andy Buchanan/AFP via Getty Images)

The then-constitution secretary, Michael Russell, published a draft independence referendum Bill in March last year ahead of the Holyrood elections.

Nicola Sturgeon has repeatedly said she intends to “take the steps that will facilitate a referendum” before the end of 2023, including passing an independence referendum Bill through the Scottish Parliament.

However, any Bill introduced by the Scottish Government must come with a statement on legislative competence, usually informed by advice from the law officers such as the Lord Advocate.

In response to a Freedom of Information request asking to confirm whether law officers had simply provided an opinion to ministers on the matter, Government officials refused to state whether that had happened.

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A spokesperson for the Government said: “There is a long-standing convention that Government does not disclose whether the law officers have or have not advised on any matter.

“The Law Officer Convention applies both to Scottish ministers and those in the UK Government.”

Officials said this was intended to “promote good government” and claimed the public interest in disclosing whether officers had provided advice was not in favour of disclosure.

The Scottish Government also refused to release any briefing papers relating to law officer advice around the independence Bill, citing legal privilege and the potential to undermine on ‘free and frank advice’ from civil servants and advisers.

This, officials said, was due to the need for a “private space” to explore a Bill so a “sound and likely to be effective” policy can be adopted.

Donald Cameron, the Scottish Conservative’s constitution spokesperson, said the response was “typical” of the SNP’s approach to transparency.

He said: “Despite pressing ahead with their plans for another deeply damaging and divisive referendum, they have no wish to be upfront with the public over their plans.

“They are even keeping people in the dark over whether this Bill could even be brought to the Scottish Parliament in the first place.

“When all our focus ought to be on rebuilding public services and accelerating our recovery, SNP ministers are obsessing over constitutional issues, even to the point of not revealing any legal advice they have had on their own referendum Bill.”

Alex Cole-Hamilton, leader of the Scottish Liberal Democrats, accused the Government of hiding “uncomfortable truths”.

He said: "The public interest defence is usually used for highly sensitive material. Whether a proposed law is competent or not does not fall into that category.

"I think this is far more about saving the ministers’ blushes and it’s possible the Freedom of Information request may have revealed some uncomfortable truths about the legality of their plans. The SNP are risking putting the Lord Advocate and others in a difficult spot by proceeding with something so ill-advised.

"It is very disappointing to see that during a global pandemic and a war on the European continent, the SNP continues to use public money and time to further their separatist agenda and in addition be so underhand and secretive about the legality of what they are doing.”

Scottish Labour Constitution spokesperson Sarah Boyack said: “This staggering response is bound to raise some serious eyebrows.

“We have all come to expect this kind of secrecy and obstruction from the SNP, but it beggars belief that they won’t even answer these basic questions.

“The SNP shouldn’t be wasting valuable time and resources tying themselves in legal knots over a damaging and divisive referendum.

“We need to focus on rebuilding from the pandemic and delivering a real recovery for Scotland.”

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