Tuesday, September 18, 2012

Secretive SNP's double standards on legal advice

It won't be long before some nationalist comes along and accuses me of smearing the SNP. That's what tends to happen when you disagree with them or point out that they may be guilty of saying one thing and doing another.

This week, they are blowing our hard earned taxes on fighting a ruling by Scotland's Information Commissioner. Labour MEP Catherine Stihler asked them if they had taken any legal advice on an independent Scotland's membership of the EU. The SNP argue that Scotland would have the same rights, the same opt outs on the Euro, and would automatically be part of the EU. They have not provided one shred of evidence to back that up. Their position seems fanciful at best in light of the comments of European Commission President Jose Manuel Barroso who said that all new states would have to apply to join and be accepted by the others.

SNP ministers have refused to even tell us if they have any legal advice. You can read the Information Commissioner's ruling in full here. It's important to point out that the Commissioner says that if they did have that advice, at this point in the policy formulation process, they would be entitled to keep that secret for the moment. However, as the Referendum gets closer,that information could be very relevant to the debate.

The Commissioner is aware that the Scottish Government is committed to a referendum on the matter of Scottish independence. In 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.
In the Commissioner's view, the disclosure of legal advice on this matter could, if it existed and was held by the Ministers, inform the public in making their choice in a referendum, and in participating in the referendum debate.
However, although the contents of such advice could remain secret for the moment, the Commissioner ruled that there was no reason for ministers to refuse to tell us if it existed.
On balance, the Commissioner is not satisfied in this case that it would be contrary to the public interest for the Ministers to reveal whether the legal advice requested by Ms Stihler exists or is held by them. In particular, and as noted above, the Commissioner considers that there is a strong public interest in enabling scrutiny and better understanding of the procedure followed by the Ministers in their policy development processes.
Consequently, the Commissioner concludes that the Ministers were not entitled to refuse to reveal whether the requested information exists or is held by them in terms of section 18(1) of FOISA. The Commissioner has set out below the steps which she now requires the Ministers to take as a result of this conclusion.
I find it extraordinary that the SNP are defying the Information Commissioner and appealing her decision in Court. It's bad PR if nothing else. It looks like they're trying to hide something, especially when they're refusing to publish the Risk Register on independence and to gag a parliamentary committee at the same time.

If the SNP were in charge of an independent Scotland, clearly information would only be released on a need to know basis, with them deciding who needed to know. However, they didn't always think that way. Way back in 2005, Alex Salmond was insistent that the Labour Government should release its legal advice on Iraq.

No doubt nationalists will come up with some reason why there should be one rule for others and another for them. No doubt they'll dismiss me as some unionist harridan with an axe to grind, but they certainly can't do that with Kate Higgins, who supports independence, is actively campaigning for it and is doing all she can to up the quality of the debate. Last month, in a post called Just because you're paranoid, she wrote:
This is not how good government works.  Nor is it the way to gain the trust of the people in what will be the biggest political decision of their lives.
If the SNP Government wants the people of Scotland to trust them enough to vote yes to independence, they need to rediscover the spring in their step of the earliest days of government and put an end to this creeping fog of paranoia, suppression, fear and nervousness.
 I had been hoping that Nicola Sturgeon, now in charge of independence related matters, would have brought some sense to bear on this one. She and Angela Constance between them tend to have more common sense than all the rest of the SNP ministers put together and I just can't imagine why they would think that the secrecy would be a good idea.


Peter A Bell said...

The appeal against the Information Commissioner's ruling on legal advice is part of the process and therefore as legitimate as the original FoI request. Arguably more legitimate, as the appeal is in defence of a long-standing principle of confidentiality, to which all parties subscribe, while Stihler's request was blatantly frivolous and vexatious.

Stihler and her Tory cronies knew full well that the Scottish Government would have no choice but to defend this principle. The sole purpose of the request was to force the government to take the matter to court. There is nothing new or significant to be learned from whatever advice the Scottish Government may hold. So responsibility for the cost to the taxpayer lies entirely with those who are using Freedom of Information legislation to pursue their pointless and puerile political games.

Galen10 said...

When I first looked at this issue, it so happens that I tended to agree with your position, and that on burdzeyeview; the SG should make a virtue of publishing this, and highlighting the differences between tham and the UK government in this regards.

But (ah yes there is always a but....) if you reserach this a bit more deeply, I'm afraid your post DOES actually look partial and biased, because I've come to agree with those who don't think the advice should be published.

It is interesting to read the comments on birdeyeview relating to this issue, which Peter Bell amongst others have added to.

In the end, I think the case is fairly unanswerable that the SG is doing no different from the Westminster government. It is in fact simply following procedure. As pointed out elsewhere, the Westminster government refused a similar FOI request from Steven Noonan to publish its legal advice.

Whilst there IS a case to be made for saying the SG should "go first", in a spirit of openness etc, on reflection, why should they?

I don't actually think the issue under dispute (which is the narrow one of disclosing whether they have taken advice or not, and not whether the advice, assuming it exists, should be published)is of sufficient import to merit the Commissioner over-riding the SG.

If the Commissioner gets her way, it will mean the same will presumably have to happen to the UK government advice?

Anonymous said...

Possibly Nicola Sturgeon and Angela Constance actually take the ministerial code literally?

2.35 The fact that legal advice has or has not been given to the Scottish Government by the Law Officers and the content of any legal advice given by them or anyone else must not be revealed outwith the Scottish Government without the Law Officers' prior consent. The only exception to this rule is that it is acknowledged publicly that the Law Officers have advised on the legislative competence of Government Bills introduced in the Parliament (see paragraph 3.4 below). Views given by the Law Officers in their Ministerial capacity are not subject to this restriction.

That was also the case when Lib Dems were in office - and of course the Tory Government of which the Lib Dems are a part has also refused to disclose whether it has taken legal advice.

I think we can be fairly sure that the Scottish Government has taken legal advice and that it will form part of the series of white papers that will be released on independence.

What I genuinely do not understand is the point of all the harrying. Hold the referendum now! Decide the question(s) now! Release the legal advice now!

The referendum is not going to be held till Autumn 2014. Can you explain what the point is of all this stuff right now because it just seems pointless to me and I suspect to most voters.


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