THE MINISTERS were ordered to issue legal advice on indyref2 after losing the battle for freedom of information.
The move was followed by an observer who ruled that the government had violated transparency legislation by detaining documents from the press and the public.
Scottish Information Commissioner Darren Fitjenry said the decisions regarding the publication of legal advice made during Alex Salmond’s investigation in Holyrood, and the “obvious” and “significant” public interest in the proposed vote, meant that some of the material had to be delivered.
They are given until June 10 this year for the issuance of documents.
READ MORE: No referendum bill ahead of May 5th council elections
First Minister Nicola Sturgeon wants to pass legislation in Holyrood that allows indyref2 to take place by the end of 2023, if Covid allows, and instructs government officials to update the independence plan. It is unknown at this time what he will do after leaving the post.
Her plan follows Boris Johnson’s refusal to agree to transfer power to the Scottish Parliament to hold a legitimate referendum, a process that followed the 2014 vote.
READ MORE: Douglas Ross: Boris Johnson will not be in Scotland before May 5
However, constitutional lawyers are divided over whether the Scottish Parliament has the power to pass such legislation, with many believing that the legality of the referendum bill will be challenged by the UK government in the Supreme Court.
Ahead of the Holyrood election in May last year, the Scottish government was forced to issue legal advice on their failure to defend themselves against judicial review by the former prime minister in connection with their investigation into allegations of sexual harassment, which Mr Salmond denied.
READ MORE: Plans to hold independence vote to be announced soon, says Patrick Harvey
The Scottish Government has acknowledged that his investigation was illegal, unjust and “tainted by obvious biases”, which has led to Holyrud’s investigation into what went wrong. During this investigation, ministers were forced to disclose the legal advice given to them during the investigation of the complaints against Mr Salmond.
In his decision, Mr Fitgenry said the decision to exempt legal advice from investigating complaints against Mr Salmond showed that ministers acknowledged that there could be “necessary reasons of public interest to disclose legal advice”.
He concluded that aspects of legal advice on indyref2 would fall into the same “exceptional circumstances” in which the public interest prevailed over legal professional privilege.
The Scotsman originally sought legal advice from ministers or the civil service on the subject of a second independence referendum in 2020. The Herald also sent a request for freedom of information to ministers for any legal advice they received on indyref2.
READ MORE: SNP and Greens to draw up joint independence plans for 2023 referendum
But officials declined to provide any information on either document, arguing that disclosure would violate the lawyer’s professional privilege – a convention that guarantees the confidentiality of legal advice.
Mr Fitgenry agreed that the “significant, built-in public interest” would allow ministers to receive “full and unhindered legal advice”.
However, he agreed with The Scotsman’s claims that this “is not irrevocable”, adding that the Scottish Ministerial Code states that there are exceptions to this convention, including when the legal council may affect “a large number of people”.
Mr Fitzhenry wrote: ‘The Commissioner notes the complainant’s view that keeping the legal advice relating to the second independence referendum a secret is actively undermining accountability and control and would be contrary to the public interest.
“Given the fundamental importance of Scotland’s future constitutional relations for all persons living in Scotland and its fundamental importance for the political and public debate at the time of the request and request for review, the Commissioner is satisfied that disclosing this information would significantly intensified the public debate on this issue.
“While the ministers expressed concern that the disclosure of legal advice in this case would lead to future legal advice being more careful or less effective, the Commissioner acknowledged the complainant’s assertion that the ministers’ own decision to disclose legal advice” related to the case of Alex Salmond already created such an environment, if there was a risk, and further disclosure of legal advice, which is of much greater public interest, is unlikely to create further difficulties.
Douglas Ross, leader of the Scottish Conservatives, said the commissioner’s decision was a “devastating reproach” for the Scottish government.
“Nicolas Sturgeon and Co.’s failed attempt to silence this is just the latest example of a government willing to do everything possible to avoid control,” he added.
Sarah Boyc, a spokeswoman for the Scottish Labor Constitution, said: “This decision is another rebuke to this secretive SNP government, which has once again been caught trying to withhold information and stifle control.
“The public has a right to see this information about their future and the SNP must disclose it immediately, but more importantly, they must stop wasting time, energy and money on this separatist distraction.
“The people of Scotland need their government to focus on recovering from the pandemic and tackling the cost of living crisis – not to be tied to legal nodes in an attempt to hide the holes in their case for a split referendum.
A spokesman for the Scottish Government said: “We have received the decision from the Scottish Commissioner for Information and are considering its terms.
“However, we are clear that the Scottish Government has acted lawfully in enforcing Freedom of Information Act.
“There is a long-standing convention, followed by the UK and Scottish governments, that the government does not disclose legal advice, including whether law enforcement officials have given advice on an issue, except in exceptional circumstances.
“The content of any such council is confidential and subject to legal professional privilege. This ensures that full and frank legal advice can be given. ”
On Wednesday, Secretary of the Constitution Angus Robertson testified before the Independent Commission on the Constitutional Future of Wales.
He said: “Wales is having its own constitutional debate, which I am happy to contribute to today.
“This is, of course, a matter for the people of Wales, but the Scottish Government is clear that the best future for Scotland is to become an independent country and the opportunity to enter into an equal partnership with the rest of the United Kingdom.
“As the Welsh Government says, the United Kingdom is a voluntary association of nations.” Therefore, the people of Scotland have the right to decide their own future, especially given the enormous and harmful effects of Brexit.
Add Comment