Paper published

IndyRef2 advice leaves big questions unanswered

Scottish independence march in Edinburgh
Campaigners are demanding an early vote (pic: Terry Murden)

A document outlining the advice given to the Scottish government on holding a new independence referendum fails to make clear if it would have the power to legislate for a poll without the UK government’s support.

The two-page paper, published on the orders of the Information Commissioner, Daren Fitzhenry, reveals that ministers were advised they could work on policies preparing for a vote, and could test a question with the Electoral Commission.

But it leaves unanswered key questions about challenging the UK Government’s resolve not to allow another vote.

The Scottish government had initially refused to publish the advice, but was told it was in the public interest to do so.

Some of the advice now appears on its website, but the government said the commissioner had ruled that it was entitled to withhold some of the details that had been demanded under freedom of information laws.

The document said the advice from the Scottish government legal directorate in January last year was that “there is a legal basis for Ministers to ask (the Electoral Commission) to undertake question testing”.

The government was told later that law officers had previously confirmed that “ministers can lawfully undertake policy development work preparing proposals for independence and in calling for a transfer of power”.

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However, there is no mention of any advice the government received on whether or not it has the power to hold a referendum even if the UK government does not grant formal consent.

There has been speculation since the referendum in 2014 that should First Minister Nicola Sturgeon pursue her plan to hold a second poll it could result in a fight with the UK government in the courts.

Scottish Conservative constitution spokesman Donald Cameron welcomed the SNP’s release of “information that they tried to hide from the public”.

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But he added: “It still leaves unanswered questions about how they plan to continue their push for a second divisive referendum. The murky secretive approach must end. The public deserve answers about what the SNP are planning.”

Scottish Labour’s Sarah Boyack said: “This is a rare win for transparency against this secretive SNP government, but this advice leaves the big questions unanswered. 

“Whether they are withholding crucial information or simply haven’t bothered to ask about competency, this fiasco speaks to something badly wrong at the heart of the SNP.  

Another referendum is the SNP’s answer to every question under the sun, so the public shouldn’t be kept in the dark on the legality of it.

“The SNP have dragged this circus out for long enough – they need to come clean once and for all.”

Scottish Liberal Democrat leader Alex Cole-Hamilton said: “The Scottish government are at it. What the public want to know is whether the Scottish government has legal advice on holding a referendum without a Section 30 Order and by refusing to publish that they are mocking freedom of information legislation.”

Alex Salmond’s breakaway Alba Party said the advice means there is no reason to wait any longer in tabling independence referendum bill.

Alba Party Chair Tasmina Ahmed-Sheikh said: “In light of this legal advice published today, the independence movement are quite right to be asking Nicola Sturgeon: why are we waiting?

“The Scottish Government must table the independence referendum bill urgently so that we can get on with the job of winning over the nation to unite behind the future we choose for Scotland. “ 



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