THE Scottish Government has published legal advice related to a second independence referendum after being compelled under freedom of information law.

It shows that in 2020 ministers were told it would be legal to undertake policy development work on independence and ask the Electoral Commission to test the question on the ballot.

But it conspicuously does not cover whether government lawyers thought it would be legal to introduce Indyref2 legislation at Holyrood or hold a vote without Wesminster’s consent.

The Liberal Democrats said the lack of clarity on these key questions suggested ministers were "at it".

Publication followed a long-running battle between the Government and the Scotsman newspaper, which successfully appealed a refusal to the Scottish Information Commissioner.

He ordered ministers to release two pages of information supplied to ministers about Indyref2 in 2020 before June 10.

Nicola Sturgeon said the Government would consider appealing the case to the Court of Session, as it was a long-standing convention not to release legal advice to ministers.

This was in spite of deputy FM John Swinney, releasing legal advice about the Government’s civil court case with Alex Salmond when he faced a no confidence vote for initially refusing.

However the Government this afternoon relented, and insisted it was not setting a precedent for the future release of other legal advice to ministers.

In a statement, it said: “The Scottish Government considers that the convention on legal advice is important for ensuring good government.

“It disagrees strongly with the Commissioner’s reasoning in his decision and considers that there are good grounds for a successful appeal to the Court of Session to challenge the Commissioner’s ruling.   

“However, we have also taken account of the fact that the material covered by this Decision  dates from 2020 and relates to proposed government actions that have since been taken forward and on which the legal position can therefore already be assumed.

“The Government has therefore concluded, on the particular circumstances of this case only, that the time and expense required for an appeal would not be merited, and that it will release and publish the information concerned.

“It should be stressed, however, that the Scottish Government’s publication of the material in this case does not set any precedent for its position on releasing any other information that is subject to legal professional privilege, including in response to any other Freedom of Information request.  

“Nor does the Information Commissioner Decision represent a binding legal precedent.”

The material includes a submission to then SNP constitution secretary Mike Russell in January 2020 about whether it would be legal to ask the Electoral Commission to evaluate the intelligibility of the ballot question for Indyref2. 

At the time, Boris Johnson had just refused to grant a transfer of referendum powers to Holyrood under a Section 30 order.

Nevertheless, the government’s in-house lawyers said there was a legal basis to ask the Commission to undertake question testing without a Section 30 order.

It reminded Mr Russell that this had actually been done for the 2014 referendum, when work started before Westminster had passed a Section 30 order as it was not contentious.

The advice said: “There was a risk in 2012 that, because there was not yet a transfer of competence the Commission could have taken the view it should not agree to test a referendum question which was not beyond challenge. 

“That risk will have increased with the PM’s response refusing a section 30 Order. 

“However, it does not create additional underlying legal difficulties, as the situation is similar if not identical to in 2012 where the Commission agreed to the request before a transfer of competence.”

It said that under the Holyrood framework law on referendums of all kinds, the Commission would have to report on the intelligibility of the question in any case as soon as practicable after a ‘trigger’ Bill was introduced at Holyrood. 

“This would effectively compel the Commission to test the question. The constraints on timetabling mean we must request question testing before we are in a position to introduce any Bill so we cannot use this route to compel the Commission to test a question.

“However, the Commission will be aware that it would be required to test a question on introduction of a Bill.”

The material also shows that in December 2019 the Scottish Government’s law officers gave an opinion that ministers “can lawfully undertake policy development preparing proposals for independence and in calling for a transfer of power”.

In February 2020, in-house lawyers said they considered “preparation of a Bill” would also be covered by this opinion.

In March 2020, the outbreakl of Covid forced the Scottish Government to pause its work on Indyref2, with Mr Russell telling the Commission question testing would not be needed.

Despite insisting that Indyref2 will be held next year, Nicola Sturgeon has yet to introduce legislation for it at Holyrood.

This would require the new Lord Advocate, Dorothy Bain QC, to agree it would be likely to survive a competence challenge at the UK Supreme Court.

Tory MSP Donald Cameron said: “It’s welcome that the SNP have finally been dragged into releasing this information that they tried to hide from the public.

“However, 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 Liberal Democrat leader Alex Cole-Hamilton said: "The SNP/Green government is devoting its focus, top civil servants and tens of millions of pounds to independence so the very least it can do is share basic information. This advice is silent on all of the central legal questions.

“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.

“NHS waiting lists are longer than ever before, public services are on the brink and we are experiencing the biggest hit to living standards since the end of rationing. Ministers obsessing over independence is the last thing everyone needs.

“It’s time to get Scotland back on its feet and move on from the division that has held people back for so long. Let’s lay aside talk of an independence referendum and get to grips with what matters right now.”

Labour MSP 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.

“We cannot keep wasting time and energy stuck in a quagmire of constitutional bickering and cover-up when people are struggling to make ends and our public services are at breaking point.”