Scottish independence: legal advice on second referendum would have been out long ago if ministers were more committed to democratic principles – comment by a Scotsman

Independence supporters, and everyone in Scotland, deserve to know the truth about the Scottish Government’s legal advice on a second referendum (Photo: Jeff J Mitchell/Getty Images)

And in Scotland, alarm bells have been ringing over a number of attempts to conceal important information, such as the Covid death toll in individual care homes and hospitals; modeling how the virus was likely to spread; a report on harassment complaints filed against Alex Salmond; and crucial information about the Ferguson Marine “Ferrygate” scandal.

Now, after a struggle of more than a year, The Scotsman has won a ruling that the Scottish Government breached the Freedom of Information Act by refusing to publish aspects of the legal advice it received regarding the outfit of a second referendum on independence.

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Ministers had essentially argued that such advice should be covered by the convention that legal advice to a client is confidential and that making it public could make lawyers more circumspect in the future about their opinions and therefore provide less effective advice.

These are entirely reasonable arguments, but there is a significant difference between a lawyer working for an individual and one employed by the government. In the latter case, client confidentiality must be weighed against the public interest and people’s right to know what their elected leaders are planning and doing, and on what basis.

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Indeed, the Scottish Ministerial Code recognizes this, stating that legal advice to government may be disclosed if it concerns a “large number of people”. And as he ruled the Indyref2 notice must be published by June 10, Information Commissioner Daren Fitzhenry rightly said its disclosure would “significantly enhance public debate” on an issue “of fundamental importance… to all people living in Scotland”.

So while we understand the Scottish government’s arguments for refusing to release the advice, they don’t stand the test of what really matters in a democracy.

It would be bad enough if it were a one-time offence, but their repeated attempts to avoid public scrutiny create a strong impression that ministers view it as an irritant or impediment to government business, rather than ‘an important and internationally recognized part of the process.

In 2002, the United Nations Commission on Human Rights declared a number of “essential elements of democracy“, including freedom of expression, free and fair elections, the rule of law, respect for human rights, the independence of the judiciary and, of course, “transparency and accountability in the ‘public administration “. After all, if governments keep secrets from their citizens, how can people vote knowingly?

One concern is that SNP ministers are so committed to the cause of independence that they might be willing to compromise or even ignore these democratic principles as they pursue their ultimate goal.

But they should be aware that when voters think of independence they will obviously wonder what kind of country Scotland would be apart from the UK. A Scottish government that seeks to hide information from the public inspires little confidence as to what would happen if it assumed full control of the nation’s affairs.

The Scotsman has worked for 13 months to ensure that the legal advice to the Scottish Government regarding a second independence referendum will be made public because it really matters and voters deserve to know what ministers have been told. And we will continue to try to make openness a reality in Scottish democracy.

However, while journalists are expected to be tenacious in their search for the truth, it should not have been so difficult, taken so long or required a decision from the Information Commissioner.

And that would not have been the case if ministers, and perhaps also the civil servants who advise them, had been more committed to the best system of government ever devised: democracy.


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