The Scottish First Minister warned that publishing the advice could breach the ministerial code.
02 May 2022
Nicola Sturgeon has said her government is considering “carefully” whether legal advice regarding a second Scottish independence referendum can be made public.
However, with leading opposition politicians at Holyrood calling for the information to be put into the public domain, Ms Sturgeon stressed such a move could still risk breaching the ministerial code.
The calls for legal advice that Scottish Government ministers have received to be disclosed comes in the wake of a recent ruling by information commissioner Daren Fitzhenry.
He said some information could be made public by June 10, though Scottish ministers could still appeal against this decision.
Ms Sturgeon though, was clear she believed publishing legal advice would be a breach of the ministerial code.
Speaking as she insisted Scots would vote for independence if a second vote on leaving the UK was to take place, the First Minister told BBC Radio Scotland that the code contains provisions to prevent “ministers like me discussing the content of legal advice”.
She told the interviewer: “If I was to do that today you would no doubt have me on tomorrow accusing me, in very legitimate journalistic terms I hasten to add, of breaching the ministerial code, so I’m not going to go into that.”
Scottish Conservative constitution spokesman Donald Cameron MSP said: “The information commissioner has said clearly that the Scottish Government ought to publish the legal advice they have received on holding another divisive independence referendum.
“But instead of accepting they were wrong to attempt to withhold this in the first place, Nicola Sturgeon is continuing to explore every avenue to prevent this coming out to avoid scrutiny.
“The First Minister is forever claiming that her government is open and transparent, while behaving in a way totally at odds with that laughable assertion.”
He also said that “the public has a right to know what legal justification there is for a team of senior civil servants being seconded to work on a referendum that the majority of Scots don’t want”.
Mr Cameron said: “It’s bad enough that the First Minister continues to obsess about the constitution, when she ought to be focused on the cost-of-living crisis, but her refusal to be up front about her plans is even more unacceptable.”
Scottish Liberal Democrat leader Alex Cole-Hamilton was also critical of Ms Sturgeon, saying that “based on past form, I half expected the First Minister to say that all the relevant documents had mysteriously vanished”.
Mr Cole-Hamilton said: “The information commissioner was clear that the Government needed to publish.
“I think the public would be appalled if the Government were wasting taxpayers’ money pressing ahead with their plans if there was legal advice suggesting they didn’t have a leg to stand on.”
Ms Sturgeon said, however, that her government was “considering this carefully”.
She explained that was because of the “long standing convention, not just in Scotland, but across the UK and probably most other countries in the world, that routinely governments don’t publish legal advice, because we put a lot of value on the ability to get free and frank legal advice”.
The First Minister added: “So if we are to depart from that convention – it’s quite a significant thing, it goes against precedent and we want to consider that carefully.”
Ms Sturgeon, meanwhile, was adamant that if a second referendum was held, Scots would this time vote in favour of independence.
Speaking on BBC Breakfast the SNP leader said: “I’m convinced that when people get that choice again they will vote for Scotland to be independent.
“Most of the promises that were made to Scotland at the last referendum by those who argued against independence – not least that we’d continue to be in the European Union – have been broken.”
Her comments come despite a dip in support for independence in recent polling.
In the early months of the Covid-19 pandemic, support for Scottish independence hit record highs – rising to 56% in favour in one Ipsos Mori poll for STV.
But that figure has steadily reduced since, casting doubt on the possibility of a win for the Yes campaign in another vote.
Ms Sturgeon has said she wants to hold another referendum before the end of next year, indicating last month that she could step aside if Scots voted no in a second referendum.
However speaking on Monday she insisted: “That’s not a scenario that I’m working towards.”