THE Scotland Office has refused to “confirm or deny” if it holds legal advice regarding a second independence referendum.
The National logged a Freedom of Information (FOI) request with the UK Government department asking for any correspondence related to legal briefings which mentioned a second independence referendum or a Section 30 order, between August 2020 and August 2021.
However the Scotland Office, headed by Secretary of State Alister Jack, used multiple exemptions in order to dodge the request.
They also stated that the importance of “open and frank communication” between client and lawyer outweighed the public interest.
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The Scottish Government have also rejected FOI requests on the basis of the same exemptions. Previously, they refused a request asking for legal advice regarding an independent Scotland rejoining the European Union.
It comes just over a month after Professor Ciaran Martin, the former constitution director at the Cabinet Office, said that although the Scottish Government may lose a legal challenge in court over holding indyref2, it could lead to independence.
Martin, one of the architects of the Edinburgh Agreement, said the UK Government would be forced to make arguments stating that Scotland is not its own nation with self determination.
And, we also told how Downing Street rejected Nicola Sturgeon’s call to Boris Johnson for indyref2 to be allowed to go ahead before she had even finished making her speech at the SNP party conference.
On August 26, in an FOI request The National asked for: “Any correspondence, briefing papers or memos (internal and external) relating to legal advice given to or by the Advocate General for Scotland regarding a second Scottish Independence Referendum.
“Any correspondence, briefing papers or memos (internal and external) relating to legal advice given to or by the Advocate General for Scotland regarding a Section 30 order.
“Could you please provide the information from the past year (August 2020- 2021).”
Tory MP Alister Jack heads the Scotland Office which refused our request
The current Advocate General is Lord Stewart of Dirleton QC, and his role is to advise the UK Government on Scots law.
The Scotland Office replied on September 24, and would not “confirm or deny” if it holds the information asked for.
The UK Government cited two different exemptions under the Freedom of Information act as the reason behind not giving out the information.
They said: “Section 35(1)(c) says information held by a government department is exempt information if it relates to ‘the provision of advice by any of the Law Officers or any request for the provision of such advice’.
It continued: ”Section 42(1) of the Freedom of Information Act 2000 states ‘Information in respect of which a claim to legal professional privilege or, in Scotland, to confidentiality of communications could be maintained in legal proceedings is exempt information.’”
The exemptions required the Scotland Office to test assess the public interest “in disclosing whether or not the Office holds the information requested”.
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They said: “The Office of the Secretary of State for Scotland acknowledges that general openness in government may increase public trust in and engagement with government, and that there is also a public interest in informing the public as to the role of public servants in events.
“With respect to section 35, in view of the strong underlying constitutional convention that government does not reveal whether Law Officers have or have not advised on a particular issue, and the fundamental importance of this convention to good government, we consider maintaining the exclusion of the duty to confirm or deny whether or not the Office of the Secretary of State for Scotland holds the information requested outweighs the public interest in disclosure.”
For section 42, the response said that “significant importance” to “safeguarding openness” between client and lawyer, “to ensure access to full and frank legal advice, which in turn is fundamental to the administration of justice”.
Lord Stewart of Dirleton QC is the current Advocate General who advises the UK Government on Scots law
The response added: “In view of all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the Office of the Secretary of State for Scotland holds the information.”
A UK Government spokesperson said: "As we made clear in our response, there is a strong convention that government does not reveal whether Law Officers have, or have not, advised on a particular issue.
"Our response sets out the relevant provisions of the Freedom of Information Act 2000 which we consider apply to the request."
At the SNP conference earlier this month, the First Minister reiterated her pledge to hold a “legal referendum” by the end of 2023 on the condition the coronavirus crisis had passed.
However, Downing Street and Boris Johnson have refused to engage with the First Minister on the issue, despite the May 6 Scottish Parliamentary elections securing the party's mandate for a second constitutional vote.
And, it was revealed that UK ministers have been told not to talk about independence in a bid to get the issue to fall off the agenda.
Read the full FOI request and response from the Scotland Office below.
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