Nicola Sturgeon to consider 'carefully' whether to release Scottish independence referendum legal advice

Nicola Sturgeon will “carefully” consider releasing legal advice around a second independence referendum, despite being ordered to publish documents following a ruling by the information commissioner.

The First Minister’s comments came as the SNP leader gave another indication that a push for a vote could end up in a legal battle in the courts.

With campaigning ahead of the local elections on Thursday continuing to ramp up, opposition parties called for clarity around whether the Scottish Government would publish the legal advice as ordered to do so.

First Minister Nicola Sturgeon has tea at a cafe in Arbroath while on the campaign trail for the coming local elections. Picture: Russell Cheyne - Pool/Getty Images

However, leader of the Scottish Conservatives Douglas Ross refused to say the UK Government should publish its own legal advice on indyref2, should it have sought any counsel on the matter.

Following a 13-month transparency battle with The Scotsman, Scottish ministers were told to release parts of their legal advice around indyref2 by June 10 due to the “significant” public interest in the information being made public.

Ministers can appeal the decision to the Court of Session on a point of law only, with Ms Sturgeon stating they were still considering the ruling.

Speaking to the BBC’s Good Morning Scotland programme, the First Minister would not be drawn on the contents of the legal advice, claiming commenting on them would be a breach of the ministerial code.

The code outlines ministers are unable to state who provided legal advice or comment on the contents, but can acknowledge that is has been sought.

Ministers are, however, able to release legal advice in “exceptional circumstances”, but must first obtain the consent of law officers.

Ms Sturgeon said any decision to depart from the convention of keeping legal advice secret would be a "significant” decision and was one she was “carefully” considering.

She explained that was because of the “long-standing convention, not just in Scotland, but across the UK and probably most other countries in the world, that routinely governments don’t publish legal advice, because we put a lot of value on the ability to get free and frank legal advice”.

The First Minister added: “So if we are to depart from that convention – it’s quite a significant thing. It goes against precedent and we want to consider that carefully.”

Ministers last released legal advice during the Alex Salmond Inquiry after several parliamentary votes and the threat of a no-confidence vote in Deputy First Minister John Swinney, which forced the Government to publish documents around the judicial review launched by the former first minister.

Ms Sturgeon also gave another indication that a push for an independence referendum would likely end up in the courts due to her desire for a “legal” vote.

She said: “I say this very, very clearly that I have no interest in anything other than a referendum that is entirely legal and constitutional.

"I wouldn't be able to have a referendum that wasn’t entirely legal because in this country, we have checks and balances, and courts would be able to decide if that wasn't the case.

"I only want a referendum that is capable of delivering independence, which means it has to be legal, it has to be constitutional, and it has to lead to a majority of people in Scotland voting for independence.”

Mr Ross criticised the response from the First Minister, saying the SNP leader must be “up front” and “adhere” to the ruling of the commissioner.

However, speaking at a campaign event alongside former Scottish Tory leader Ruth Davidson, in Portobello, Edinburgh, Mr Ross refused to comment on whether the UK Government should publish its legal advice on the issue, if it had sought any.

He said he did not know whether the UK Government had sought legal advice and, when asked whether it should be released on a point of principle, pointed journalists towards the Scotland Office and the Cabinet Office.

The Scottish Tory leader said: “I can't give a point of principle on something I don't know and I'm not accountable for.

“But there's plenty of people, both with the Scottish Secretary, the Prime Minister, the Cabinet Office, plenty of people will be able to provide that information.”

Mr Ross added: “The information commissioner's ruling was very clear. You can't read it in any other way than the Government have to release this information by June 10

“This forms a pattern of Nicola Sturgeon and her Government trying to keep things secret.

"Nicola Sturgeon has to be up front and adhere to the ruling of the information commissioner because, as they said, there's a clear public interest element to this inquiry.”

Mr Ross also rejected the suggestion the UK Government’s response to Partygate of putting up barriers to information and delaying its release was the same as the Scottish Government's approach in terms of the ferries fiasco and indyref2 legal advice.

He said: “Nicola Sturgeon loves to say there are 200 documents numbering something like 1,500 pages and all the information is there because it is not, because [Auditor General] Stephen Boyle has been very clear that all the information is not there.

“If Nicola Sturgeon wants to be open and transparent, she has to match her rhetoric with her actions and at the moment she doesn't.

“[On Partygate], there's a lot been published so far and we've got the privileges committee that are looking into it and they'll be able to compel any information. We've got the Sue Gray report coming, we've got a Met inquiry, so there's actually quite a lot of investigations.

“Here in Scotland the public audit committee are struggling to get to the bottom of things in the same way the Auditor General is.”

Scottish Liberal Democrat leader Alex Cole-Hamilton was also critical of Ms Sturgeon, saying that “based on past form, I half expected the First Minister to say that all the relevant documents had mysteriously vanished”.

Mr Cole-Hamilton said: “The information commissioner was clear that the Government needed to publish.

“I think the public would be appalled if the Government were wasting taxpayers’ money pressing ahead with their plans if there was legal advice suggesting they didn’t have a leg to stand on.”

In the early months of the Covid-19 pandemic, support for Scottish independence hit record highs, rising to 56 per cent in favour in one Ipsos Mori poll for STV.

But that figure has steadily reduced since, casting doubt on the possibility of a win for the Yes campaign in another vote.

But Ms Sturgeon, speaking in the days leading up to Thursday’s council elections, said she thought Scots would still opt to leave the UK if given the chance in another referendum, which she claims will be held by the end of next year.

“I set out my thinking on this at the Scottish Parliament elections last year when I put myself up for re-election as First Minister and my Government for re-election,” she said on BBC Breakfast.

“We said that we wanted to offer people the choice of independence in the first half of this Scottish parliamentary term, which means before the end of next year – 2023.”

Ms Sturgeon added: “I’m convinced that when people get that choice again, they will vote for Scotland to be independent. Most of the promises that were made to Scotland at the last referendum by those who argued against independence – not least that we’d continue to be in the European Union – have been broken.

“But, of course, it is a matter for the people of Scotland and I recognise the responsibility I have and those arguing for independence have to make that case and to win that argument.”

The UK Government declined to comment on whether it had sourced or would release any legal advice around indyref2, saying in a statement: “People across Scotland, rightly, want to see both of their governments working together on the issues that matter to them. That includes driving down NHS backlogs, protecting our long-term energy security and supporting our economic recovery, so that everyone has access to the opportunities, skills, and jobs for the future.”