Legal advice to the Scottish Government over its powers to hold a second independence referendum without the consent of the UK Government should be disclosed in the public interest, the Scottish Information Commissioner has ruled.
The Commissioner, Daren Fitzhenry, gave his decision on an appeal by the Scotsman newspaper after ministers refused its request under the Freedom of Information (Scotland) Act, citing the exception the Act for information covered by legal professional privilege.
While they acknowledged that disclosure of the information would form part of open and transparent government and would inform public debate, they considered this to be outweighed by the strong public interest in maintaining the right to confidentiality of communications between legal advisers and clients, to ensure that ministers and officials were able to receive legal advice in confidence, like any other public or private organisation.
In his ruling upholding the appeal in part, the Commissioner said he accepted that there was "a considerable, in-built, public interest" in maintaining the ability of ministers to receive full, unhindered legal advice. However this was "not inalienable". The Scottish Ministerial Code itself recognised that there might be exceptional circumstances where the balance of public interest lay in disclosure: these included "a situation where a large number of people are affected by the legal advice concerned".
He continued: "The Commissioner considers it to be obvious that the question of a second independence referendum in Scotland is of significant public interest for a substantial portion of the Scottish population. This is particularly the case given that both parties involved in the present Scottish Government had this as a key part of their respective election manifestos.
"The Commissioner notes the applicant’s view that keeping legal advice relating to a second independence referendum secret actively harms accountability and scrutiny and would be counter to the public interest. Given the fundamental importance of Scotland’s future constitutional relationship to all individuals living in Scotland, and its fundamental importance to political and public debate at the time of the request and requirement for review, the Commissioner is satisfied that disclosing this information would significantly enhance public debate on this issue.
"While the ministers have expressed concern that disclosure of legal advice in this case would have the effect of future legal advice being more circumspect or less effective, the Commissioner acknowledges the point made by the applicant that the ministers’ own decision to disclose legal advice relating to the Alex Salmond case has already created such an environment, if the risk were there, and a further disclosure of legal advice which is of much greater public interest is unlikely to create any further difficulty. Furthermore, the decision of the ministers to disclose the legal advice in the Alex Salmond case clearly shows that they recognise that there can be compelling public interest reasons for disclosure of legal advice received."
For these Mr Fitzhenry concluded that, in this case, the substantial public interest in disclosure of some of the withheld information "should be considered one of the exceptional circumstances which outweighs the in-built public interest in maintaining the exemption". Ministers will be provided with a separate schedule detailing the information to be disclosed.
They have until 10 June 2022 to publish the advice specified. They have a right to appeal to the Court of Session.