Urgent hearing called after Salmond fails to answer questions about EU legal advice

Scottish Political Editor

Sunday 16 September 2012

THE Scottish Information Commissioner has asked the country's highest court for an "urgent" hearing on Alex Salmond's refusal to say whether he has any legal advice on the status of an independent Scotland in Europe, according to official papers obtained by the Sunday Herald.

Information Commissioner Rosemary Agnew ordered the disclosures in July

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EXCLUSIVE BY SCOTTISH POLITICAL EDITOR TOM GORDON

Rosemary Agnew warned the law had been thrown into "significant uncertainty" by the First Minister's action, and identified a Government trend in refusing to say whether information existed, with seven other recent examples.

She said the Government's view of the law was "very substantially at odds" with her own.

Agnew ordered ministers in July to disclose whether or not they held advice from their own law officers on an independent Scotland's place in the EU after Labour MEP Catherine Stihler asked for it under freedom of information (FoI). Agnew said there was a "strong public interest" in saying whether the legal advice existed, even if the contents remained private.However, the Government refused to say if it had any such advice, arguing that to confirm or deny its existence was "contrary to the public interest".It subsequently launched an appeal against the Commissioner's decision at the Court of Session in order to keep the matter secret, a fight that is expected to cost taxpayers £100,000. In a "motion for urgent disposal" last week, Agnew asked the court to set a date for a full two-day hearing on the appeal without delay.In response, she has been granted a preliminary 30-minute hearing this Thursday.The matter has been repeatedly criticised by opposition MSPs, who claim Salmond has something to hide – either that he doesn't have advice on a key issue, or that the advice he has doesn't fit with his repeated assertion that an independent Scotland would be an automatic EU member.Automatic membership is crucial for the SNP's case for independence, as Scotland would inherit the UK opt-out from the euro and keep the pound.If, on the other hand, Scotland was deemed to leave the EU when it left the UK, it could be forced to apply for membership as a new state, and new states must agree to use the euro. The argument exploded last week when Jose Manuel Barroso, president of the European Commission, appeared to torpedo the SNP's argument by saying all new states must apply for membership. "A new state, if it wants to join the EU, has to apply to become a member of the EU, like any state," he said.Pressed the next day at First Minister's questions about Scotland's legal status, Salmond refused to give any more details until November 2013, when the government is due to publish its white paper on the mechanics of independence.He also claimed he was gagged by the ministerial code, even though it states legal advice can be disclosed with the Lord Advocate's permission.The Government's case in the FoI appeal turns on Section 18(1) of the 2002 Freedom of Information (Scotland) Act, which says a public body can refuse to say if it holds particular information if it considers that to reveal it exists or is held would be contrary to the public interest.When the legislation went through Parliament, the then Deputy First Minister Jim Wallace suggested Section 18 might apply to police investigations where early disclosure might affect the outcome, and said it required "reasonable grounds".In the Court of Session motion last week, Agnew's solicitors said: "The construction of section 18(1) is at the heart of the appeal and could affect every public authority's view of the public interest in that section, and every request for information. "The Scottish ministers'... interpretation of section 18(1) is very substantially at odds with [that of the Commissioner]. Until the question is resolved in these proceedings, there is likely to be significant uncertainty."The motion revealed Agnew had four other cases awaiting decision in which Scottish ministers were also relying on Section 18(1), and added: "The trend for Scottish ministers to rely on section 18(1) has developed relatively recently."It said the Commissioner's office had given 22 decisions on Section 18(1) refusals in its seven-year existence, half involving the police. Four involved Scottish ministers, but all of these "post-date April 2012".The motion concluded: "It would be in the interests of the [Commissioner's] good administration, and more generally, for the appeal to be heard without delay."A Labour spokesman said: "We are increasingly concerned in the culture of secrecy in the Scottish Government and this begs the question, 'what have they got to hide?'."A Scottish Government spokeswoman said: "It is the longstanding practice of all Scottish administrations to neither confirm or deny the existence or the content of legal advice."

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Urgent hearing called after Salmond fails to answer questions about EU legal advice

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