Legal advice, or the lack thereof, about an independent Scotland in the EU

It has been an interesting day for the SNP. Two MSPs have resigned the party whip over a change to the traditional opposition to NATO. The responses to the referendum consultation (regarding the question(s) and the franchise for the referendum on Scottish independence from England, Wales and Northern Ireland) have been made public. This latter point, as highlighted in a BBC report, has revealed what SNP opponents seem to think is a bit of gimme.

That gimme is that it now becomes apparent that the SNP forced one Catherine Stihler MEP to apply to the Scottish Information Commissioner (“the Commissioner”) for a decision when the Scottish Ministers refused to indicate one way or the other whether specific legal advice had been obtained on an independent Scotland’s place in the European Union, which was on 6 July 2012 deemed to be a failure to comply with the Scottish freedom of information regime. (There might even just have been a little bit of SNP obfuscation along the way about what advice might have been received, depending on who you wish to believe, but I have no intention of getting into that counter-factual debating cul-de-sac.) This is what the BBC reports:

[The Deputy First Minister] Ms Sturgeon confirmed the Scottish government has now commissioned specific legal advice from law officers on the position of Scotland within the European Union.

The SNP had not previously done so.

She said: “The Scottish government has previously cited opinions from a number of eminent legal authorities, past and present, in support of its view that an independent Scotland will continue in membership of the European Union – but has not sought specific legal advice.

“However, as the Edinburgh Agreement provides the exact context of the process of obtaining independence, we now have the basis on which specific legal advice can be sought.”

Ministers had previously gone to court to prevent attempts to reveal whether or not they had sought such advice.

Ms Sturgeon said the government’s position in the independence White Paper would be based on the advice they receive.

She added: “Given that my statement today answers the ruling of the Information Commissioner on the existence of legal advice, there is now no need for the government to pursue an appeal [at the Court of Session] against this ruling in this specific case and I have asked our lawyers to advise the court accordingly and to ask that the appeal be dismissed.

“I should also make clear that, in confirming that the government has now asked for law officers’ advice, I have both sought and received the prior agreement of the Lord Advocate.”

So, there will be no court action on this issue to follow on from the Commissioner’s decision after all. A short offering on one very narrow point is offered in this blog. Amidst all the criticism, has the Commissioner piped up to join the critics? If anyone is to criticise, surely her voice is the most important. Does she regard her time as wasted?

I would be keen to hear if she does. “Test cases” happen with a degree of regularity, where points that are important can be discussed to settle a point of law. Here, the question was whether or not the existence of the advice was non-disclosable in terms of the Freedom of Information (Scotland) Act 2002. This is a knotty question. Why should anyone be criticised for seeking (or, more accurately, forcing someone else to seek) clarification of that point?

Here is what the decision in question provides:

The Commissioner finds that the Scottish Ministers (the Ministers) failed to comply with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) in responding to the information request made by Ms Stihler. The Commissioner has found that the Ministers were not entitled to refuse to reveal, in terms of section 18(1) of FOISA, whether the legal advice in question exists or is held by them.

The Commissioner therefore requires the Ministers to reveal to Ms Stihler whether the legal advice she requested existed or was held by them when they received her request. If the information was held, she requires the Ministers either to provide that information to Ms Stihler, or to issue a refusal notice in line with the requirements of section 16 of FOISA. If the information was not held, she requires the Ministers to issue a notice in line with the requirements of section 17 of FOISA.

The Commissioner requires the Ministers to take these steps by 21 August 2012.

Albeit with a bit of a time-lag, this is now happening. I am not saying the Scottish Government was right to filibuster here, nor am I saying they were wrong to. All I would note is that I am most interested to hear what the Commissioner says, or indeed what Catherine Stihler might think of the whole situation. In principle, though, I have absolutely no problem with any party exploring any legal routes that are available to them. I suppose that comes with my job description of “academic lawyer”.

As to the wider political fallout? What do I know? Not much, but I will offer two tentative thoughts.

1) The EU point will simply not go away, regardless of the advice of learned jurists, unless and until a positive vote for Scottish independence occurs (although that will in no way stop the debate/realpolitik positioning).

2) The double resignation from the SNP might just be a boon for the Yes campaign. If ever there was a sign that it is (or should be) independence 1st, SNP 2nd, this sign is now prominently displayed by two principled Highlanders.

UPDATE: Amidst all the tweets on the #scomnishambles (seriously), two caught my eye. First, Alan Roden of the Scottish Daily Mail noted the Commissioner’s legal costs were £8,002.80, to which time costs of the Scottish Ministers etc. would be added. Maybe I am inured to such things as a former Edinburgh lawyer, but I do not actually think that is too bad. Second, a tweeted reply to my blog pointed me in the direction of Stephen Noon’s blog, where he critiques the UK government’s refusal to confirm or deny the existence of any legal advice on RUK’s continuing EU status.

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About basedrones

Bachelor of Laws. Scots lawyer working at the University of Aberdeen. English law qualified. Took far too long to write this bio. Blogs on legal issues, with occasional veering into other purportedly intellectual stuff from time to time. Tweets about legal issues, education, law clinics, fitba, music, rogue cell division and not at all about politics at @MalcolmCombe.
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One Response to Legal advice, or the lack thereof, about an independent Scotland in the EU

  1. Doug Daniel says:

    It seems to me that Labour demanded to know if legal advice existed, the Government refused to say either way, and because that advice didn’t exist, the Government are now being accused of wasting public money. The logical there is that the Government shouldn’t refuse to admit if they have legal advice if it doesn’t exist, which in turn implies the only acceptable time to refuse to say if you have legal advice or not is if that advice does indeed exist.

    In other words, you either admit it doesn’t exist, or you refuse to say, which means it must exist. So Labour are basically saying Government shouldn’t be allowed to refuse to say if legal advice exists or not.

    Now, I realise I possibly have an unfair advantage over such illustrious brains as Paul Martin, Johann Lamont and Jackie Baillie when it comes to logical arguments, since the Discrete Methods and Artificial Intelligence modules I did at uni were all about logic. But come on, it’s not that difficult!

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