Scottish Government told to come clean after failing to disclose key piece of indyref legal advice

Ministers have been urged to “come clean” after failing to release legal advice around whether the Scottish Parliament has the power to legislate for a second independence referendum.

The calls from critics come after aspects of legal advice linked to indyref2 were published on Tuesday afternoon.

The advice states ministers believe they have the power to test the 2014 independence referendum question and that they can undertake preparatory work ahead of a vote.

However, the key question of whether the Government has been advised legislating for a second independence referendum is within the powers of the Scottish Parliament is not included in the disclosure.

Scottish Labour’s constitution spokesperson Sarah Boyack called on the Government to stop leaving the public “in the dark” and to “come clean once and for all”.

She said: “This is a rare win for transparency against this secretive SNP Government, but this advice leaves the big questions unanswered.”

Ministers were forced to release the advice based on a transparency battle with The Scotsman following a landmark ruling by the Scottish Information Commissioner (SIC).

Protesters with Scottish Saltire flags attend a march organised by the grassroots organistaion All Under One Banner calling for Scottish independence in Glasgow. Picture: Andy Buchanan/AFP via Getty Images

Critics are now calling for this aspect of the legal advice to be released, on the assumption it has been sought by ministers.

Responding to the decision by the information commissioner, constitution secretary Angus Robertson said the Government believed it had “good grounds” for a successful appeal to the Court of Session.

This would have seen the SNP/Green government go to court to withhold the information disclosed.

However, the date by which the Government must have lodged an appeal was today, and ministers claimed the expense of such a battle was not "merited” on cost and time.

The advice states the Government believes it has the right to test the 2014 referendum question prior to any so-called ‘trigger’ bill, with former constitution secretary Michael Russell having done so in 2020.

The Electoral Commission was unable to test the question due to the onset of the Covid-19 pandemic.

Ministers have also been advised they are legally able to undertake policy preparation work around a second independence referendum and a transfer of powers.

The advice also argues the precedent of having asked the Electoral Commission to test the 2014 question prior to the section 30 order relating to the first referendum not yet being law allowed the Government to do the same in 2020.

It states the commission agreeing the request prior to a “transfer of competence” provided the legal grounds for such a request.

The Government was asked by The Scotsman for any legal advice to ministers or provided by the civil service on the topic of a second independence referendum in 2020 in January 2021.

After refusing to release any information, citing legal professional privilege, ministers lost an appeal to the Scottish Information Commissioner, which forced them to release the information.

The SIC agreed the public interest in releasing the information was significant enough to override the concerns of the Government.

Commissioner Daren Fitzhenry also argued the decision to release the legal advice relating to the Alex Salmond judicial review also demonstrated there were times when legal advice can be published.

In a statement, Mr Robertson said the Government would have had “good grounds” for a successful appeal of the decision and claimed it did not set a precedent for future decisions around the publication of legal advice.

He said: “The Scottish Government considers that the convention on legal advice is important for ensuring good government. It disagrees strongly with the commissioner’s reasoning in his decision and considers that there are good grounds for a successful appeal to the Court of Session to challenge the Commissioner’s ruling.

“However, we have also taken account of the fact that the material covered by this decision dates from 2020 and relates to proposed Government actions that have since been taken forward and on which the legal position can therefore already be assumed.

"The Government has therefore concluded, on the particular circumstances of this case only, that the time and expense required for an appeal would not be merited.”

Despite this, critics have demanded the Government release advice on the question of competency, assuming that it does exist.

Ms Boyack said: “Whether they are withholding crucial information or simply haven’t bothered to ask about competency, this fiasco speaks to something badly wrong at the heart of the SNP.

“Another referendum is the SNP’s answer to every question under the sun, so the public shouldn’t be kept in the dark on the legality of it. The SNP have dragged this circus out for long enough – they need to come clean once and for all."

Alex Cole-Hamilton, the Scottish Liberal Democrats leader, accused the Government of being “at it” and of “mocking Freedom of Information legislation” by not releasing the relevant advice.

He said: “The SNP/Green government is devoting its focus, top civil servants and tens of millions of pounds to independence, so the very least it can do is share basic information. This advice is silent on all of the central legal questions.

“The Scottish Government are at it. What the public want to know is whether the Scottish Government has legal advice on holding a referendum without a section 30 order.”

Scottish Conservative constitution spokesperson Donald Cameron welcomed the disclosure, but said the public still “deserve answers about what the SNP are planning”.

He said: “It’s welcome that the SNP have finally been dragged into releasing this information that they tried to hide from the public. However, it still leaves unanswered questions about how they plan to continue their push for a second divisive referendum.”

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