By a Newsnet reporter

Demands by the anti-independence parties for the Scottish Government to reveal whether it holds legal advice on Scotland's EU status have been branded as "brazen hypocrisy" after the Freedom of Information Office granted a request from a Labour MEP, Catherine Stihler, for the legal advice to be disclosed.

The Scottish Government maintained that legal advice has always been a privileged matter exempted under the Freedom of Information Act, and pointed out that when in power at both Westminster and Holyrood the same Unionist parties, now calling for the information to be made public, cited the same exemption when refusing to reveal legal advice that they themselves had been given.

Eight months ago the UK Government blocked a freedom of information request for its advice on Scotland in Europe.

Speaking in December 2011, a spokesman said: "Whilst there is a strong public interest in seeing what legal advice has been provided to the UK Government on the implications of EU membership if Scotland were to achieve independence, we have concluded that this is outweighed by a strong public interest in the Government being able to seek free and frank legal advice."

In December 2002, the Labour/Lib Dem run Scottish Executive refused to disclose what legal advice it sought regarding the boundaries of the devolved responsibilities of the Parliament before seeking the agreement of Holyrood that the UK Parliament legislate on devolved matters.

Labour's Patricia Ferguson, then Minister for Parliament, replied:  "By long-standing convention, the general policy of the Scottish Executive is that it does not disclose legal advice or whether it has taken legal advice."

Replying to the initial FoI request from the anti-independence parties in November 2011, Freedom of Information Officer James Ross upheld the Scottish Government's position, saying:

"While we recognise that there is a public interest in seeing what legal advice (if any) has been provided to the UK Government on the implications for EU membership if Scotland were to achieve independence, we have concluded that this is outweighed by the strong public interest in the Government being able to seek free and frank legal advice on such matters."

However the anti-independence parties immediately announced their decision to appeal, and in a ruling given on Thursday, Rosemary Agnew, the Freedom of Information Commissioner, said:

"In the commissioner's view, the role of [the FoI Act] is important not only in ensuring transparency in information held by public authorities, but also in enabling transparency in information about process."

Ms Agnew added that the position of an independent Scotland in the EU "could have a bearing on how people vote in the referendum".

She ruled: "In this case, the commissioner considers that it is in the public interest to know the type of information that the ministers were taking into account in developing policy in relation to such a significant issue as independence."

A spokesperson for the Scottish Government said it was "surprised" by the commissioner's decision, and announced the Scottish Government's intention to appeal against the ruling, saying: "It is the longstanding and usual practice of the Scottish government to neither confirm or deny the existence or the content of legal advice.

"The approach we have taken on this issue is consistent with the UK government position in a similar case they dealt with under equivalent legislation. We therefore intend to appeal and contest the decision."

The decision by the Information Commisioner sets a dangerous precedent in that it is apparently based on electoral decisions yet to be made by voters.  If allowed to stand, then future governments may find themselves forced to reveal confidential information if the Commissioner deems any future referendum or election sufficiently "significant".

The SNP decried the demand from the anti-independence parties as hypocritical, given their previous refusal to reveal legal information they themselves received when in government.

Accusing the No campaign of "scaremongering" over the status of an independent Scotland in the EU, SNP MSP Kenneth Gibson pointed out that Tory, Lib Dem and Labour governments all followed a similar convention as the Scottish Government on the disclosure of such information.

Mr Gibson said:

"This is brazen hypocrisy by the anti-independence parties who adhere to a similar convention as the Scottish Government is following now.

"As this FOI shows, the Scottish Government's stance on issues surrounding legal advice is the same as the UK Government.

"Scotland's position on EU membership is crystal clear – we are already an integral part of the EU and when we become an independent country we will be in exactly the same position as the rest of the UK as successor state.

"The European Commission has not said anything contrary to that position.  The reality is, as legal, constitutional and European experts have confirmed, Scotland is part of the territory of the EU and the people of Scotland are citizens of the EU.

"Even senior Labour politicians, like the late Robin Cook, agreed that Scotland would remain a member of the EU.

"The Tory-led No cabal would do well to listen to them as to suggest the contrary is just blatant scaremongering."


The Scottish Government maintains that Scotland is already a member of the EU, and would continue to be so post-independence.  The Scottish Government argues that both Scotland and the remnant UK would equally be successor states to the United Kingdom, which was formed by the union of the Parliaments of Scotland and England in 1707.  As such, both successor states would inherit the treaty rights and obligations of the UK.

Even senior and respected Labour politicians, when in Government, have agreed that Scotland would continue to be a part of the EU after independence.  The late Robin Cook, when Foreign Secretary, stated that an independent Scotland would remain a member of the EU, saying: "It's in the nature of the European Union, it welcomes all-comers and Scotland would be a member."

Speaking to BBC Newsweek Scotland in November 2011, Emannuel Sigalas, a political scientist in Vienna's prestigious Institute for Advanced Studies, agreed with Mr Cook, saying:  

"If Scotland becomes an independent state, it's clearly the United Kingdom or the rest of the United Kingdom; it's not the state as it used to be when it entered the EU in 1973.  I'm sure the EU would love to still have the British state and the Scottish state if there's ever one ... it's an inclusive EU that we're talking about."

The Scottish Government insists that legally, upon Scottish independence, both Scotland the remnant UK would be in the exact same legal situation regarding EU membership and membership of other international bodies.  An anonymous Labour Lord Chancellor, quoted by the former Conservative MP Norman Tebbit, supported this view, at least in private.

Pointing out that an independent Scotland did not sign EU membership treaties, Mr Tebbit asked whether "the new state of Scotland" would have to re-apply for EU membership.  The Labour Lord Chancellor replied:  

"But what about the new state of England, Northern Ireland and Wales?  Would we remain members?  After all our new state would not have been a party to the Treaty either."

Other legal experts have voiced the same opinion.  Eamonn Gallagher, former Director General of the European Commission and EC Ambassador to the UN in New York, quoted in the Sunday Herald on 18 February 2007, said:  

"Scotland and the rest of the UK would be equally entitled to continue their existing full membership of the EU."

Emile Noel, the first and longest serving Secretary-General of the European Commission said:"Scottish Independence would create two new member states out of one.  They would have equal status with each other and the other states.  The remainder of the United Kingdom would not be in a more powerful position than Scotland."


Newsnet Comment

There may be even further inconsistencies in the No campaign's position regarding the status of an independent Scotland as a successor state to the UK.  As a joint successor state to the UK, Scotland would inherit the existing international obligations of the UK, and would also inherit a share of the UK national debt.  

If as the anti-independence parties maintain - at least in public - that an independent Scotland would be an entirely new state which must re-apply for membership of all international bodies, while the UK continued unaffected, then they must clarify whether they also accept that an independent Scotland would not inherit a penny of the UK national debt.

This debt not only includes Scotland's proportional share of UK national debt, it would also include all debts owed by the devolved Scottish Government such as the £37.5 billion of PFI debt foisted upon Scotland by previous Labour/Lib Dem administrations.  If, as the anti-independence parties insist, the newly independent Parliament were not a legal successor to the devolved Parliament then upon independence these debts would legally revert to the UK Government.

Speaking to the Scotland on Sunday newspaer on 8 March 1992, Lord Mackenzie-Stuart - a Judge on the European Court of Justice between 1973 and 1988, and President from 1984-88 said:

"Independence would leave Scotland and something called 'the rest' in the same legal boat.  If Scotland had to reapply, so would the rest.  I am puzzled at the suggestion that there would be a difference in the status of Scotland and the rest of the United Kingdom in terms of Community law if the Act of Union was dissolved."

Although Lord Mackenzie-Stuart made his remarks over 20 years ago, the anti-independence parties continue to cast doubt on Scotland's status as a successor state to the UK, despite the judge expressing his puzzlement that anyone could profess such a position.


# Barontorc 2012-07-12 23:37
Any road that an independent Scotland will travel is for the people of Scotland to decide upon and we will have that pleasure in our own time and at our own choosing.

This fudge and bluster is coming from only one source and it isn't Europe.

When the Treaty of Union is dissolved it is a matter for the parties to that treaty only. Europe has no legal interest or jurisdiction and will look on the parties as potential members in their own right, if they express willing to be part of the EU.
# Am Fògarrach 2012-07-13 00:40
This article covers two separate topics and should be divided into 'Legal Advice' and 'EU Membership' topics.
# ButeHouse 2012-07-13 01:03
This item came up in the last 20 minutes of the Newsdrive programme on Radio Scotland today.

The announcer could hardly get the 'BAD' news out fast enough letting us know that they would return to the story as more news came in.

As 6pm loomed there was some mumbling along the lines that were essentially favourable to the SNP Government. Matter closed.

I watched avidly the BBC Scotland news at 6.30pm and this HOT item wasn't even mentioned. It had cooled to non spinability within 60 minutes and therefore was dropped.

VOTE YES in 2014
# gus1940 2012-07-13 06:46
Why doesn't The SNP demand to know what advice, if any, the Westminster Government have received or asked for from The EU regarding an Indpendent Scotland's status in The EU?

Play them at their own stupid game.
# Jake62 2012-07-13 08:21
They have, or at least Stephen Noon who works on policy for the SNP did just that late 2011 - see
# Sinosceptic 2012-07-13 07:02
I don't see why the SNP would want to hide the information from us, especially if it cost the people money to get the advice?? If it was 'free' advice then it should all have been verbal and discrete over a quiet dinner. The only reasons they would hide it is if - 1) It was not what they wanted the people to hear, or 2) It was information they know the unionists would jump all over.
# tartanfever 2012-07-13 07:47
I think your missing the point - apart from the precedent of this information clearly being changed against the SNP which you fail to mention, the process of what and how any information was gathered by the SNP - who they spoke to, what conversation were had simply isn't relevant - from the advice they received the SNP then took it's stance. Simple.

I've never known any party in the history of politics that has been asked to provide such information on one of the party policies.

As gus says, a FOI requesting Westminster's contacts and conversations should be re-submitted if we are going to be forced to divulge such info.
# Sinosceptic 2012-07-13 14:37
I don't think I'm missing the point - I don't really care about precedents or process. What I care about is people having all the information that they need to make a decision on which way to vote. If there is a legal position on Scotland's membership or otherwise of the EU then surely we should be allowed to know this. If the SNP has spent my money (I pay by DD every month) on getting this information then I'd like to know what I'm letting myself in for with regards to Europe. It's really no different from Independence supporter asking to know what the 'additional powers' the Scottish Parliament MIGHT be given (by Westminster) IF we vote No. But, as you say 'precedent' will or should also mean that Westminster has to divulge as well. A wee simultaneous exchange of folders over the border at high noon perhaps.
# Sinosceptic 2012-07-13 07:24
And as for taking no share of the UK national debt - would we then have to give up all our right to our share of the UK assets as well? That's just madness.
# Siôn Jones 2012-07-13 09:05
Not really, as at present the assets are dwarfed by the liabilities. The oil will revert to Scotland by international law, so that is not at issue.
# Leswil 2012-07-13 07:28
As far as I am concerned, we are being "Fair" with rUK. Reason being, we accept our share of UK debt.

However, should they continue to be obstructive in all the ways that they do.
Why don't we just go for the NEW NATION status and apply to join the European free trade area.
We would sidestep all of UK debt. Without this burden we would to be able to conserve funds to see us through until we join the free area.
Surely, this would be a very powerful tool in getting the Unionists to desist in their constant lies and spin.
Just a thought!
# Vronsky 2012-07-13 07:38
Always lingering in the background of this dispute is the unquestioned assumption that membership of the EU is a good thing and if Scotland were to be forced out after independence this would be some sort of disaster. There are plenty who would disagree, and I'm talking about the political left, not a bunch of Little Englander Tories. I'd personally like to see us out at independence, and then a referendum on entry. Remember the Irish were denied a referendum on EU membership because it looked as if they would vote against - how they must be regretting that now.
# Galen10 2012-07-13 07:57
No, the Irish weren't denied a referendum on joining the EEC as it then was. Negotiations began in the late 1960's, and the Treaty of Accession was signed in 1972 and confirmed by a referendum that year. Iralnad joined the EEC at the same time as the UK and Denmark, increasing the membership from 6 to 9.
# Vronsky 2012-07-13 12:49
The Irish referendum on the Treaty establishing a Constitution for Europe was a vote that was planned but did not occur. The referendum was expected to take place in 2005 or 2006 to decide whether Ireland should ratify the proposed EU Constitution. Following the rejection of the Constitution by voters in the French referendum of May 2005 and the Dutch referendum of June 2005, the planned Irish referendum was postponed indefinitely. [...] A TNS/MRBI Irish Times opinion poll on 14 June 2005 showed that while 45% of voters wished to see a referendum, only 30% would vote yes in the constitutional referendum, with 35% voting no and 35% unsure. (Wiki)
# Sinosceptic 2012-07-13 07:50
@ Vronsky - well said. The SNP keep saying that 'The People of Scotland will decide' - so let us.
# alexb 2012-07-13 08:09
While I fully agree about the "hypocrisy" of the unionist parties, surely when you attempt to keep some matter "secret", you only give the opposition ammunition to criticise you, and your methods.
# Galen10 2012-07-13 08:25
I agree that there is a danger that this looks suspicious, and that if the Scottish government have nothing to hide they should simply publish the advice; it would be a good stick to beat the Unionists with from an "open democracy" point of view, as it would challenge them to reveal their advice too.

There is however something to be said for the argument that such advice should be considered confidential, and the SNP are right to point out that they are simply following convention and accepted practice.

On balance I think they should publish the advice; even if it isn't as clear cut as they would like, it would at least show that they are in favour of a different approach than the Unionists parties.

In the end, the decision whether to stay within the EU if we are automatically considered members, or re-apply if we aren't, can be left for the Scottish people to decide post 2014.
# snowthistle 2012-07-13 09:29
The advice is kept secret so that lawyers and advisers can give full and frank opinions without fear of those opinions coming back to haunt them. If advisers suspect that there is a risk that their advice will be published in the future they may be much more guarded in what they say.
# MacSenex 2012-07-13 08:25
Why not just publish the a legal advice provide the UK government also publishes simultaneously? They will be full of caveats anyway.

The whole matter is a complete distraction as the decision will be made on political grounds.
# Leswil 2012-07-13 08:50
I do not understand the reasoning of informing the UK of our given advise.
Why would anyone give the opposition all the information they would need to try and counter act our claims. Tie us up in endless court battles with spurious claims even if they know they can't win in the long run. They want to drag things out to make people pessimistic.
At the end of the day the S/G will be accountable to the people of Scotland and they would have to exhibit when the time is right everything they have. For now, we have to put our trust in S/G to act well on our behalf, that does not mean that they should be stupid.
# Ready to Start 2012-07-13 08:58
Legal advice is merely an opinion and has no bearing on what would happen as this is governed by economic and political considerations.

Former UK Government advisers are on record as saying that given the amount of North Sea Oil it is inconceivable that an independent Scotland would be refused membership of the EU.

Watch Youtube Domhair pt 6
# Mei 2012-07-13 09:05
Greenland was still part of the European Economic Community after it became independent of Denmark. Later it had to negotiate to leave the EEC.
# Galen10 2012-07-13 09:47
Greenland isn't independent, it is a self-governing part of the kingdom of Denmark. The Danish monarch remains their head of state.

Home rule was first granted after a referendum in 1979, and extended by another referendum in 2009. The latter was widely regarded as a step towards full independence, but Denamrk remains responsible for defence, foreign affairs, justice, civil rights law, and most financial matters.

Greenland still uses the danish kronor, and is heavily dependent on financial subsidies from the Danish government.

Greenland withdrew formally from the EU in 1985 after a referendum in favour of doing so in 1983 and 2 years of negotiations thereafter. The chief issue was a desire to have control of Greenlandic fisheries, but there was also a desire to reduce control of non-Greenlanders over the country generally.
# davemsc 2012-07-13 09:51
Regardless of the precedents, the SG need to be transparent. In any case, if we would indeed need to re-join the EU after independence, it is unlikely that there would be an appetite for it among the public. I am a supporter of the EU, but it is in urgent need of reform. The current debacle over the euro only serves to highlight this, and there may even be calls for an independent Scotland to leave the EU soon after independence if the EU doesn't sort itself out soon. We could easily adopt the same position as Norway without losing most of the benefits of EU membership.
# chicmac 2012-07-13 09:56
I am afraid that Cameron (or his advisers) have won the EU battle by implying that they will let the people decide on continued EU membership after the independence referendum.

By deferring in this way, he placates both sides of the fence on this issue, giving them both hope that it will soon be resolved to each's liking.

On the other hand, there remains a certainty that, due to the anti-EU stance of many, some potential pro-independence supporters will now be lost and go to the U-side. Which is why Cameron made the statement.

For many years I have tried very hard to get the SNP to adopt a policy of deferral on EU membership by promising an EU membership referendum within a reasonable post-independence time frame.

This would have prevented loss on the issue within the PI support, would have blunted U attacks on the EU split, would have demonstrated a willingness for a new future with a direct democracy/sovereignty of the people government and would, of course, have had a marvellously concentrating effect on the minds of EU negotiators when Scotland's post-independence EU fiscal arrangement was discussed.

Unfortunately, this attempt to make the SNP see the light met with no success and now it is too late for them to do so.

I don't normally discuss SNP errors in public, at least not the big ones, however this one is now so glaringly obvious that little harm can be done by doing so.

For the record, I myself, am pro-EU.
# Virgil 2012-07-13 11:27
This article is misleading. The Government are NOT being ordered to disclose the legal advice as the first paragraph suggests.

They are being ordered to confirm or otherwise whether the legal advice existed.

If the answer is Yes, they have the choice of supplying it or issuing a Section 16 refusal notice. If the answer is No, then they have to issue a Section 17 notice to confirm this.
# ituna semea 2012-07-13 11:41
Virgil, you have spotted the mythology in the article.
# Fungus 2012-07-13 12:08
From Labourhame:

"CATHERINE STIHLER asks a Question To Which The Answer Is “None of your business”

The SNP’s position on Europe is nothing short of farcical.

In May of this year I wrote to the Scottish Government, under a Freedom of Information Act, asking for the legal advice they had been given regarding entry to the EU if Scotland became an independent country."

Seems pretty clear cut to me.
# Dundonian West 2012-07-13 12:56
Tell her to read newsnetscotland ----she'll get her answer here,loud and clear.
I suspect her Twitter is on 'repeat'.
# Wee-Scamp 2012-07-13 13:33
Ms Agnew added that the position of an independent Scotland in the EU "could have a bearing on how people vote in the referendum"

That is not Ms Agnew's concern.
# rhymer 2012-07-13 16:45
This latest bit of scaremongering is being pushed by the. BBC ----

It seems that it has suddenly been discovered that the remaining Scottish oil is only worth about 65p so is is not worth while for Scotland to become independent.

Rumours are also eminating from Westminster about Hadrian's Wall turning into blotting paper and all the water in Scotland being sucked south of the border.
# Am Fògarrach 2012-07-14 00:31
The commissioner stated ""In this case, the commissioner considers that it is in the public interest to know the type of information that the ministers were taking into account in developing policy in relation to such a significant issue as independence."

Note that the commissioner is not asking for the content of the information nor should she. This whole thing is a tempest in a teapot.

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