The Scottish government has issued legal advice related to a second independence referendum after being required by the Freedom of Information Act.
It shows that in 2020 ministers were told that it would be legal to carry out policy development work on independence and ask the Electoral Commission to approve the question on the ballot.
But it obviously doesn’t cover whether government lawyers thought it would be legal to introduce Indyref2 legislation in Holyrood or hold a vote without Wesminster’s consent.
Liberal Democrats said the lack of clarity on these key issues suggested ministers were “like this”.
The publication was followed by a long battle between the government and the Scottish newspaper, which successfully appealed a refusal to the Scottish Information Commissioner.
He ordered ministers to publish two pages of information provided to ministers on Indyref2 by 2020 before 10 June.
Nicola Sturgeon said the government would consider appealing the case to the Session Court, as it was a long-standing convention not to give legal advice to ministers.
This was despite FM MP John Swinney giving legal advice on the Government’s civil court case with Alex Salmond when he faced a no-confidence vote to initially refuse.
However, the government has given in this afternoon and insisted that it does not set a precedent for the future publication of other legal advice to ministers.
He said in a statement: “The Scottish Government considers the convention on legal advice to be important in ensuring good governance.
“He strongly disagrees with the Commissioner ‘s reasoning in his decision and considers that there are good reasons for a successful appeal to the Session Court to challenge the Commissioner’ s decision.
“However, we have also taken into account the fact that the material covered by this Decision dates from 2020 and refers to proposals for government actions that have been taken forward and on which, therefore, can already be assumed the legal position.
“Therefore, the Government has concluded, only in the particular circumstances of this case, that the time and expense required for an appeal would not be deserved, and that it will disclose and publish the information in question.
“It should be noted, however, that the publication of the material by the Scottish Government in this case does not set any precedent for its position on the disclosure of any other information subject to professional secrecy, even in response to any another request for freedom of information.
“The decision of the information commissioner does not set a binding legal precedent either.”
The material includes a presentation to then-SNP constituent secretary Mike Russell in January 2020 on whether it would be legal to ask the Electoral Commission to assess the intelligibility of the electoral question for Indyref2.
At the time, Boris Johnson had just refused to grant a transfer of powers to referendums to Holyrood under a Section 30 order.
However, internal government lawyers said there was a legal basis for asking the Commission to test questions without a Section 30 order.
He reminded Mr Russell that this had actually been done for the 2014 referendum, when work began before Westminster passed a Section 30 order as it was not controversial.
The council said: “In 2012 there was a risk that, as there was still no transfer of power, the Commission could have ruled that it should not agree to try a referendum issue that was not contested.
“This risk will have increased with the response of the Prime Minister who rejects an article 30 order.
“However, it does not create additional underlying legal difficulties, as the situation is similar, if not identical, to that of 2012, where the Commission accepted the request before a transfer of jurisdiction.”
He said that in accordance with Holyrood’s framework law on referendums of all kinds, the Commission should report on the intelligibility of the matter in any case as soon as possible after a bill has been tabled. ” detonating “at Holyrood.
“This would effectively force the Commission to test the question. Time constraints mean we have to ask for proof of questions before we can present any bills, so we can’t use this route to force the Commission to try a question.
“However, the Commission will be aware that it should test a question on the introduction of a bill.”
The material also shows that in December 2019 Scottish government legal officials opined that ministers “can legally carry out policy development by preparing proposals for independence and calling for a transfer of power”.
In February 2020, domestic lawyers said they felt that “the preparation of a bill” would also be covered by this opinion.
In March 2020, the Covid outbreak forced the Scottish government to halt its work at Indyref2, and Mr Russell told the Commission that proof of questions would not be necessary.
Despite insisting that Indyref2 be held next year, Nicola Sturgeon has not yet introduced legislation for this in Holyrood.
This would require the new Lord Advocate, Dorothy Bain QC, to accept that she is likely to survive a jurisdictional challenge in the UK Supreme Court.
Conservative MSP Donald Cameron said:
“However, he still leaves unanswered questions about how they plan to continue their push for a second divisive referendum.
“The murky secret approach must end. The public deserves answers about what the SNP is planning.”
Scottish Liberal Democrat leader Alex Cole-Hamilton said: “The SNP / Green government is devoting its focus, key officials and tens of millions of pounds to independence, so the least it can do is share This advice is silent on all of the key legal issues.
“The Scottish government is in this. What the public wants to know is whether the Scottish government has legal advice on holding a referendum without a section 30 order and by refusing to publish that they are mocking freedom of information legislation.
“NHS waiting lists are longer than ever, utilities are on the rise and we are suffering the biggest impact on living standards since the end of rationing. Independence-obsessed ministers are the last to need everyone.
“It’s time to dump her and move on.” Let’s talk about a referendum on independence and move on to what matters right now. ”
Labor MP Sarah Boyack said: “This is a rare victory for transparency against this secret SNP government, but this advice leaves the big questions unanswered.
“Whether they are providing crucial information or simply not bothering to ask about competition, this fiasco speaks to something very wrong at the heart of the SNP.
“Another referendum is the answer of the SNP to all questions under the sun, so the public should not be kept in the dark about the legality of it.
“The SNP has been dragging this circus long enough: they have to clean up once and for all.
“We cannot continue to waste time and energy caught up in a mess of constitutional fights and cover-ups when people are struggling to make ends meet and our utilities are on the verge of rupture.”