Ministers refuse to commit to avoiding court battle over Scottish independence referendum legal advice

Publication of legal advice around a potential second independence referendum may be delayed by a court battle after the Scottish Government refused to rule out challenging a ruling by the information commissioner.

Angus Robertson, the constitution secretary, refused to commit to the Government avoiding a legal challenge over the advice when answering questions in Holyrood.

The Scottish Government lost a 13-month transparency battle with The Scotsman, with the Scottish information commissioner ruling that aspects of legal advice around an independence referendum should be published due to the “significant” public interest.

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Ministers have until June 10 to either disclose the legal advice in line with the information commissioner’s ruling or lodge an appeal on a point of law with the Court of Session.

Scottish Conservative MSP Stephen Kerr asked the constitution secretary whether the Scottish Government intended to publish the legal advice “in full” or go to court to challenge the decision.

Mr Robertson said the ruling was a “significant” one and repeated Nicola Sturgeon’s answer the Government was considering the ruling carefully.

He said: “We’ve received the decision from the Scottish information commissioner and we are considering its terms.

Angus Robertson answered questions from MSPs on the recent transparency victory for The Scotsman

"Any departure from the convention is a significant thing.

"Legal professional privilege and the law officers convention protect legal advice given to all governments in these islands.

"This is a significant ruling by the commissioner and given that we want to consider it carefully, we will respond within the deadlines set by the commissioner.”

Sarah Boyack, constitution spokesperson for Scottish Labour, accused the Government of a “clear pattern of behaviour” where key documents on scandals are “hidden from members of this Parliament and from the people of Scotland”.

She said: "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.

"Will he not make arrangements for the immediate publication of this legal advice given its significance to the whole of the population of Scotland?”

Mr Robertson said: “It is a significant ruling. It is one that must be considered in the round and we will reply to that in good time within the deadlines that I have been set.

"What I find interesting about the tone so far from both the Labour Party and the Scottish Conservative party is that there seems to be a willingness to depart from the established custom and practice in relation to legal advice.

"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.”

During the premiership of Theresa May, the SNP – led by Westminster leader Ian Blackford – joined calls for the legal advice around the Brexit deal to be released.

After it was published by the UK Government following a formal motion of contempt also being passed in the House of Commons, Mr Blackford accused the then-Prime Minister of lying to the House of Commons.

The Scottish Government also published legal advice around the Alex Salmond Inquiry last year.

Want to hear more from The Scotsman's politics team? Check out the latest episode of our political podcast, The Steamie.

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