Scottish government ordered to publish indyref2 legal advice - BBC News
Ministers had refused to make it public, arguing that it would breach legal professional privilege.
There has been debate over whether Holyrood has the power to hold a referendum without the UK government's consent

The Scottish government has been ordered to publish details of legal advice it has received over a potential second independence referendum.

The government had refused to make the advice public, arguing that it would breach legal professional privilege

It has now been given a deadline of 10 June to publish parts of the advice by the country's information commissioner.

The commissioner said the "exceptional" public interest in seeing the advice outweighed the legal privilege.

First Minister Nicola Sturgeon has repeatedly said she wants to hold indyref2 next year after passing a referendum bill in the Scottish Parliament.

But the UK government has shown no sign that it would be willing to give the formal consent that ensured the legality of the 2014 referendum, in which voters backed remaining in the UK by 55% to 45%.

Constitutional experts have been split over whether a referendum held by the Scottish government without that consent being in place would be legal.

And there has been speculation that the question could result in a court battle between the governments in Edinburgh and London if Ms Sturgeon decides to press on with her plans.

There has therefore been considerable interest in the legal advice that has been given to the Scottish government.

Opposition parties have argued that it would be a waste of public money for the government to press on with its referendum plan if it has already been told by its own lawyers that it does not have the powers to hold one.

Nicola Sturgeon has said she wants to hold a referendum next year

The Scotsman newspaper had originally asked for the advice to be published under freedom of information laws in January of last year.

The newspaper appealed to the commissioner after its request was refused by the government.

In his ruling, information commissioner Daren Fitzhenry said he noted the newspaper's view that keeping legal advice on indyref2 secret would "actively harm accountability and scrutiny and would be counter to the public interest".

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."

Mr Fitzhenry also said that the government had previously chosen to disclose legal advice relating to complaints of sexual harassment against former First Minister Alex Salmond.

He added: "Further disclosure of legal advice which is of much greater public interest is unlikely to create any further difficulty."

And he said publishing details of the legal advice would "significantly enhance public debate on this issue".

It was with extreme reluctance that the Scottish government handed over legal advice it had received to the Holyrood inquiry into its mishandling of complaints about Alex Salmond's behaviour.

It resisted - partly - because of the risk that this would raise expectations about the release of legal advice on other topics in future, despite the convention that this is confidential.

That is what has now happened. The information commissioner has decided the Salmond case was a recognition of exceptional circumstances where public interest outweighs confidentiality concerns.

The commissioner has also concluded that the debate over Scottish independence is a similarly exceptional case.

His ruling does not mean all legal advice on this topic will automatically be published. Each case will be judged on its own merits.

The Scottish government was surprised by the ruling and believes that it significantly changes how future decisions on information disclosure will be considered, without opening the floodgates.

A big test for this could be whether or not they will be required to publish the legal advice they would have to seek if and when they introduce an indyref2 bill to Holyrood.

Responding to the ruling, the government said it had acted lawfully in its application of freedom of information laws.

A spokesman said: "There is a long-standing convention, observed by UK governments and Scottish governments, that 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."

Scottish Conservative leader Douglas Ross described the commissioner's ruling as a "devastating rebuke to the unacceptable culture of secrecy at the top of the SNP government".

He added: "If the SNP are going to devote large sums of public money deploying civil servants to work on a divisive referendum that the majority of Scots don't want, we are entitled to know the legal advice they have been given."

Scottish Labour MSP Sarah Boyack called on the government to release the information straight away, and urged it to "stop wasting time, energy and money on this separatist distraction."

And Willie Rennie of the Scottish Liberal Democrats said the ruling was a "victory for transparency in the face of a Scottish government whose default setting is to flout the Freedom of Information Act and throw up road block after road block."