Shedding light on SNP's EU advice

Friday 13 July 2012

If the Scottish Government does not hold legal advice on the status of an independent Scotland within the European Union, we are entitled to question why ministers whose political goal is independence have failed to ascertain what the legal position would be on this vital issue.

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Labour MEP Catherine Stihler has won an important point in securing a ruling under freedom of information legislation that the SNP Government must reveal if it has received legal advice on whether Scotland would have to re-apply for EU membership.

However, Scotland's new information commissioner Rosemary Agnew has also ruled that, if the Scottish Government does hold this information, it is not required to publish it because it relates to the early stages of policy development and is therefore exempt under the Freedom of Information (Scotland) Act (Foisa).This may seem at odds with her view: "The question of whether independence will result in Scotland automatically remaining a member of the EU, or automatically being excluded and having to apply for membership, could have a bearing on how people vote in the referendum, depending on how they view the consequences of either of these outcomes."The specific exemption under which ministers can keep the legal advice private, however, cannot continue indefinitely. The commissioner has accepted the SNP's argument that ministers should be able to consider all options candidly and privately before reaching a settled public position. She ruled that it was in the public interest to allow that to happen because, when Ms Stihler sought the information last September, the independence referendum was still some years away. It follows that there will come a time, as we draw closer to the referendum, that the public interest will be served by enabling the public to understand and discuss the implications of the constitutional lawyers' advice instead of by allowing Government ministers to chew over the potential consequences in private.That in itself will put pressure on the SNP, which claims that an independent Scotland would be able to begin talks on its EU status "from within", to publish the legal basis for that assertion. Because there is no precedent for an existing member state of the EU being split into separate countries, opinion is divided on the membership status of the successor states. In the case of an independent Scotland, there are three possibilities: both Scotland and the remainder of the UK could continue as members; both parts could be required to re-apply for membership; or Scotland could have to re-apply while the rest of the UK remains a member. The legal opinion will therefore play an important part in informing voting intentions, not least because remaining in the EU has long been on the SNP's "what's not to like" list of the advantages of independence. Alex Salmond has said he wants Scots to be in full possession of the facts before voting in the referendum. There is abundant evidence of a hunger for more precise information, most obviously on the future of defence forces, membership of Nato and currency regulation in addition to EU membership. To ensure an informed public debate, the Scottish Government must make public the advice on all these issues when it publishes its prospectus for independence in November 2013. Failure to do so, particularly from a Government that has lauded transparency, could forfeit public confidence. It should also trigger a new FOI request as the referendum date approaches. In her first high-profile ruling, Ms Agnew has delivering a carefully considered judgment. Those disappointed that the Government is not required to publish any advice it might have should recognise that she has not closed the door on future requests.

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Shedding light on SNP's EU advice

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