The Scottish government has been urged to “clarify once and for all” whether it has the power to legislate for a second independence referendum in Holyrood.
A limited selection of legal advice was published Tuesday after a protracted freedom of information battle with the Scottish newspaper, but the key question is whether the SNP government has been informed that submitting a bill for a second independence referendum will fall within the powers of the Scottish Parliament is not involved in the unveiling.
Holyrood’s opposition parties condemned the “cloudy covert approach” after the restricted publication was forced by a ruling by the information commissioner, who said there was “exceptional” public interest in disclosing the advice.
The two-page document shows ministers were told they could work on policies to prepare 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 haunted constitutional experts since the party published its roadmap to a second ballot in January 2021, which set out how – if Westminster continues to refuse the necessary transfer of powers for a legal vote – Holyrood will legislate to hold a referendum anyway.
This would pose an almost inevitable legal challenge to determine whether holding a referendum on union numbers is a reserved matter and thus beyond Holyrood’s jurisdiction, and will likely 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 the matter.
Scottish Labor constitutional spokesman Sarah Boyack welcomed “a rare victory 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 should not be left in the dark about its legality. The SNP has dragged this circus out long enough – they need to be informed once and for all,” she said.
“We cannot continue wasting time and energy in a quagmire of constitutional bickering and cover-up when people struggle to make ends meet and our public services are at a breaking point.”
The Scottish Government argued that making the advice public would violate the lawyer’s professional secrecy after the Scots asked for legal advice from ministers or had been provided by the civil service on the subject of a second independence referendum, but the Information Commissioner agreed that public interest was high enough to nullify these concerns.
The Scottish Information Commissioner, Daren Fitzhenry, argued that the Scottish Government’s decision to release legal advice related to the judicial review of Alex Salmond, after considerable pressure from all parties, also showed that there were exceptions when such advice should be given. published.
Scotland’s Conservative shadow cabinet chief for the Constitution, Donald Cameron, said: “It is welcome that the SNP has finally gotten involved in releasing this information that they were trying to hide from the public. However, it still leaves unanswered questions about how they plan to continue their push for a second divisive referendum and the darkly secretive approach must end.”