Scottish independence referendum legal advice decision has the potential to be bombshell moment

The ruling of the Scottish Information Commissioner forcing SNP ministers to publish legal advice around a second independence referendum is potentially a bombshell moment in the constitutional debate.

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Prima facie, Nicola Sturgeon’s strategy for indyref2 is to pass a referendum Bill in Holyrood within a year and hold a vote before the end of 2023.

However, as the SNP know, this is highly likely to spark a court battle with Westminster over concerns the Bill is outside the powers of the Scottish Parliament and does not abide with the Scotland Act.

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The resulting protracted court battle and the political rhetoric available to the SNP leader, it is hoped, would result in more pro-independence voters.

It is also why the legal advice provided to ministers about the legality of such a referendum Bill is so important.

There is a long-standing convention that legal advice to ministers is kept secret to allow for frank advice to be provided.

But the irony is Sturgeon’s furious split with her mentor and predecessor has made the disclosure of this advice around indyref2 possible.

First Minister Nicola Sturgeon could face difficult questions around indyref2First Minister Nicola Sturgeon could face difficult questions around indyref2
First Minister Nicola Sturgeon could face difficult questions around indyref2

Last year, the Scottish Government, under huge political pressure, published legal advice provided to it during Alex Salmond’s judicial review of the report into harassment complaints made against him.

This decision, the Information Commissioner said, demonstrated that public interest can indeed outweigh legal professional privilege.

The publication of that advice and the Commissioner’s conclusion will ripple out for years to come and will have many years of unintended consequences.

It is worth remembering ministers need the agreement of law officers that a Bill to the Scottish Parliament is competent before it is introduced.

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We do not know, yet, what the advice will say or whether ministers will fight the decision in the courts.

Should the advice say what many constitutional lawyers believe it should – that it is outwith Holyrood's competence – the SNP will be left facing months of questions about whether they are choosing to fight a battle that is costly and ultimately unwinnable.

Questions about plan B, which partially sparked the creation of the Alba Party, will only grow stronger, as will calls for fresh political leadership at the head of the party of government.

If it says otherwise, then the legal war has only just begun.

Grab your popcorn.

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