The SNP/Green Government has published limited extracts of their legal advice on a second independence referendum.
Ministers made the decision despite “strongly” disagreeing with a judgement by an information watchdog.
However, the documents do not comment on whether Holyrood can unilaterally organise a referendum.
Nicola Sturgeon ’s Government will try to push ahead with a Holyrood-run referendum if the UK Government refuses a joint agreement on another vote.
The Scottish Government refused an FOI request for information relating to the legal advice surrounding indyref2.
The Scottish Information Commissioner ordered the release of some details and the Government released it today.
The brief two pages covered whether the Scottish Government could ask the Electoral Commission to look at the question in any referendum.
The document stated: “[The legal department’s] advice that there is a legal basis for Ministers to ask the Commission to undertake question testing.”
Another extract stated: “In particular, we consider as noted at paragraph 5 that preparation of a Bill would be covered by the Law Officers’ Opinion of 6 December 2019, confirming Ministers can lawfully undertake policy development work preparing proposals for independence, and in calling for a transfer of power.”
In explaining the decision to release the information, Cabinet Secretary Angus Robertson said:
“There is a longstanding convention, observed by Scottish, UK and other governments, that government does not disclose legal advice except in exceptional circumstances. This convention, which is reflected in the Scottish Ministerial Code, is intended to ensure that full and frank legal advice can be taken by governments, just as other organisations and individuals can take legal advice in confidence and subject to legal professional privilege”
“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.”
It added: “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.”
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