Legal advice on Scottish independence referendum to be released after transparency defeat for Scottish ministers
Conor Matchett
This investigation - which is still ongoing and pending a decision by the Scottish Information Commissioner - focused on what the Scottish Government and Nicola Sturgeon had been advised by their legal advisers. This was and is key due to the continued electoral promises for Scotland to have a referendum if the SNP win elections. In short, this is a story of transparency and a significant victory for accountability and openness. This story began with a FOI request to the Scottish Government asking them for any legal advice on the topic of a second independence referendum. This was rejected on the grounds of legal privilege and eventually resulted in a full appeal to the Scottish Information Commissioner. This resulted in several months of submissions and counter-submissions from myself and the Scottish Government on the public interest of the information in question. I argued several points around public interest, most notably that the Scottish Government’s decision to dispense with its convention of keeping legal advice secret during the Alex Salmond inquiry in 2021 had demonstrated that Ministers accepted they could publish legal advice when the public interest demanded it. Legal advice around a second independence referendum, I argued, was more fundamental to democracy, accountability and transparency than the arguments for releasing the information during the Salmond inquiry, while also arguing that release would improve scrutiny of public bodies and decision-making processes. The public interest in this information was further underlined by the SNP’s manifesto commitments in the 2021 Holyrood election and the fact that independence, should it take place, would affect every single person living in Scotland. The Commissioner - in what I believe to be a landmark decision in Scotland - agreed with my arguments and ruled that some of the information should be released to the public, against all expectations. He stated that he was “satisfied that disclosing this information would significantly enhance public debate on this issue.” The Scottish Government has since kicked off Supreme Court proceedings asking whether it can legislate for an independence referendum. This story was a significant victory for public interest journalism in Scotland and one that could have long-standing implications for what sort of information is made public by governments, particularly on the thorny question of legal advice. It resulted in significant follow-ups from broadcasters and print, and invites to appear on radio and TV to discuss the story and its impact.