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."
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.