Ministers disclose limited indyref legal advice
The Scottish Government has published part of the legal advice it has received on the holding of a second independence referendum, following the ruling by the Scottish Information Commissioner regarding a freedom of information request.
The page and a half of text advises that ministers "have the power to ask the Electoral Commission to test the 2014 question", on a similar basis to what was done in 2012.
At that time the Order in Council under s 30 of the Scotland Act 1998 to enable the 2014 referendum to take place had not yet been made, but powers under s 10 of the Political Parties, Elections and Referendums Act 2000 enabled Scottish ministers to request the relevant advice.
However it is noted that with the Prime Minister having refused a further s 30 order, there is some risk that the Commission would take the view that it should not agree to test a referendum question which was not beyond challenge.
It is further disclosed that in December 2019 the law officers confirmed that ministers can lawfully undertake policy development work preparing proposals for independence and in calling for a transfer of power – and that such work could cover preparation of a bill.
What is not revealed is what advice, if any, has been given on the legality of a referendum itself, if not authorised by a further Order in Council. In his decision (news item here) the Commissioner found that the exemption in the Freedom of Information (Scotland) Act for legal advice was outweighed by the public interest in relation to the information requested, but to the extent set out in a schedule provided to ministers.
In a statement issued alongside the freedom of information disclosure, the Scottish Government stands by its position: "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, and that it will release and publish the information concerned.
"It should be stressed, however, that the Scottish Government’s publication of the material in this case does not set any precedent for its position on releasing any other information that is subject to legal professional privilege, including in response to any other freedom of information request. Nor does the Information Commissioner decision represent a binding legal precedent."