Scottish Government should release legal advice on indyref2, commissioner rules

Legal advice received by the Scottish Government about a second independence referendum should be published, the Scottish Information Commissioner has ruled.

Ministers had argued against making the advice public, saying that it would breach legal professional privilege.

But Daren Fitzhenry, the Scottish Information Commissioner, said disclosing some of the advice would “significantly enhance public debate on this issue”.

The Scottish Government has now been given a deadline of June 10 to publish parts of the advice.

Mr Fitzhenry said ministers’ decision to release legal advice they received around the Alex Salmond case had already affected the convention that such advice to ministers remained private.

The commissioner’s ruling follows a 13-month battle with the Scotsman newspaper, which asked for any legal advice provided to ministers on the topic of a second independence referendum in 2020.

The Scottish Government refused, saying doing so would breach legal professional privilege. The case was appealed to the information commissioner in April 2021, who has now released his ruling.

Mr Fitzhenry’s decision states: “The ministers also argued that a claim to confidentiality in legal proceedings could be maintained because the withheld information was only shared between the Scottish Government and its legal advisers.

“Therefore, the information remained confidential at the time they responded to the applicant’s request and requirement for review and this remained the case.”

The newspaper argued, in recent months, the Government had dispensed with the tradition of keeping legal advice private, releasing several pages of advice around the Alex Salmond harassment complaints scandal.

Mr Fitzhenry continued: “While the ministers have expressed concern that disclosure of legal advice in this case would have the effect of future legal advice being more circumspect or less effective, the commissioner acknowledges the point made by the applicant that the ministers’ own decision to disclose legal advice relating to the Alex Salmond case has already created such an environment.”

Issuing his decision, Mr Fitzhenry said there were some exceptions to the convention of not disclosing legal advice.

He said: “Given the fundamental importance of Scotland’s future constitutional relationship to all individuals living in Scotland, and its fundamental importance to political and public debate at the time of the request and requirement for review, the commissioner is satisfied that disclosing this information would significantly enhance public debate on this issue.”

The Scottish Government plans to publish a Bill that would allow Holyrood to schedule another independence vote, but opponents have questioned whether it has the legal power to do so.

The issue was raised in the Scottish Parliament last month, with constitution secretary Angus Robertson repeatedly refusing to confirm if legal advice had been sought.

First Minister Nicola Sturgeon has said she wants a second independence referendum to take place by the end of 2023.

Responding to the information commissioner’s decision, a spokesman for the Scottish Government said: “We have received the decision from the Scottish Information Commissioner and are considering its terms.

“However, we are clear the Scottish Government has acted lawfully in its application of freedom of information legislation.

“There is a long-standing convention, observed by UK Governments and Scottish Governments, that government does not disclose legal advice, including whether law officers have, or have not, advised on any matter, except in exceptional circumstances.

“The content of any such advice is confidential and subject to legal professional privilege. This ensures that full and frank legal advice can be given.”

Scottish Conservative leader, Douglas Ross, said: “This is a devastating rebuke to the unacceptable culture of secrecy at the top of the SNP Government.

“The advice given to ministers on the legal validity of a second independence referendum is demonstrably in the public interest and the information commissioner is right to rule that withholding it was unlawful.

“If the SNP are going to devote large sums of public money deploying civil servants to work on a divisive referendum that the majority of Scots don’t want, we are entitled to know the legal advice they have been given.”

Scottish Labour MSP, Sarah Boyack, said: “The public have a right to see this information about their future and the SNP must release it right away but, more importantly, they must stop wasting time, energy and money on this separatist distraction.

“People in Scotland need their Government to be focused on recovering from the pandemic and tackling the cost of living crisis – not tying themselves in legal knots in an attempt to hide the holes in their case for a divisive referendum.”