THE Scottish Government has published extracts from the legal advice it has received on a second independence referendum.
The documents show the Scottish Government is able to "lawfully" work on proposals for independence and call for transfers of power, according to opinions given by law officers in late 2019.
It further implies that "preparation of a bill", presumably related to a second independence referendum, would also be legal.
However, the extracts published do not make clear exactly which bill is being referred to.
They also do not address whether ministers have been advised that holding a second independence vote is within the scope of the current powers held by the Scottish Government.
There are less than two A4 pages of published advice in total, with the vast majority of space being taken up by two drafts of the same "submission dated 24 January 2020".
This submission reveals that the Scottish Government has been told it can legally ask the Electoral Commission to test a referendum question, and previously did so when Michael Russell was constitution secretary. However, plans were interrupted by the Covid pandemic.
The advice was published through the Scottish Government's website after a Freedom of information request for "any legal advice to Ministers or provided by the Civil Service on the topic of a second independence referendum in 2020".
The FOI request was first submitted by the Scotsman, but the Government initially refused, saying doing so would breach legal professional privilege.
The SNP government further argued that releasing the advice would set a new precedent.
Constitution Secretary Angus Robertson (above) told MSPs in May: "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.”
However, the Scottish Information Commissioner said it "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, Commissioner Daren 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 was given a deadline by which to release the information requested, although some of it remained exempt.
In a response published alongside the legal advice, the government said that the case should not be seen to have set any precedent for the future.
It said: "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.
"The Government will therefore continue to apply the relevant exemptions."
The full publication of the legal advice can be found here.
