The Scottish government has been urged to “come clean once and for all” about whether it has the power to legislate for a second independence referendum at Holyrood.
A limited selection of legal advice was published on Tuesday after a lengthy freedom of information battle with the Scotsman newspaper, but the key question of whether the SNP government has been advised that putting forward a bill for a second independence referendum is within the powers of the Scottish parliament is not included in the disclosure.
Holyrood opposition parties condemned the “murky secretive approach” after the limited publication was forced by a ruling from the information commissioner, who stated there was “exceptional” public interest in revealing the advice.
The two-page document shows that ministers were told they could work on policies preparing for a second independence vote, and test a question with the Electoral Commission.
The question of whether the SNP can legislate for a new referendum has vexed constitutional experts since the party published its roadmap towards a second vote in January 2021, setting out how – if Westminster continues to refuse the necessary transfer of powers for a legal vote – Holyrood will legislate to hold a referendum regardless.
This would prompt an almost inevitable legal challenge to settle whether holding a referendum on the union counts is a reserved matter and is thus beyond Holyrood’s competence, likely to end up in the supreme court. But despite the information commissioner’s ruling, it remains unclear what legal advice the Scottish government has received on this matter.
Scottish Labour’s constitution spokesperson, Sarah Boyack, welcomed “a rare win for transparency”, but added: “This advice leaves the big questions unanswered.”
“Another referendum is the SNP’s answer to every question under the sun, so the public shouldn’t be kept in the dark on the legality of it. The SNP have dragged this circus out for long enough – they need to come clean once and for all,” she said.
“We cannot keep wasting time and energy stuck in a quagmire of constitutional bickering and cover-up when people are struggling to make ends meet and our public services are at breaking point.”
The Scottish government argued that making the advice public would breach legal professional privilege, after it was asked by the Scotsman for any legal advice to ministers or provided by the civil service on the topic of a second independence referendum, but the information commissioner agreed the public interest was significant enough to override these concerns.
The Scottish information commissioner, Daren Fitzhenry, argued the Scottish government’s decision to release legal advice relating to the Alex Salmond judicial review, after significant cross-party pressure, also demonstrated there were exceptions when such advice should be published.
The Scottish Conservative shadow cabinet secretary for the constitution, Donald Cameron, said: “It’s welcome that the SNP have finally been dragged into releasing this information that they tried to hide from the public. However, it still leaves unanswered questions about how they plan to continue their push for a second divisive referendum. The murky secretive approach must end.”
