The Quiet Fan : Westminster criticises unusual silence of Lord Advocate Frank Mulholland over independence referendum legalities

Lord Advocate Frank Mulholland, unusually silent over legalities of independence referendum. FRANK MULHOLLAND, Scotland’s usually vocal Lord Advocate on all things from illegal fish catches to organised crime (but not on seedy activities of COPFS staff or £1million breach of the peace cases), has been criticised by MPs of the Westminster Parliament for his unusual silence over the legalities of one of the most important issues to face Scots for decades, that of the SNP’s independence referendum and the legislative competency of the Scottish Parliament to deal with the issue.

The Scottish Affairs Committee, who have now called for referendum powers to be transferred to Holyrood for the independence referendum, reported by BBC News HERE, commented with regard to The legislative competence to hold a referendum on separation :

“…The Scottish Government … produced its own paper on 20 January 2012. In it, it argued that the 2010 question had been carefully drafted to meet the constraints of the Scotland Act; but if the UK Government was, as it had indicated, willing to extend devolved powers, then there should be a simpler question:

"Do you agree that Scotland should be an independent country?", apparently acknowledging that this would not be within the Parliament's legislative competence at present. It continued:

An adjustment of legislative competence under Section 30 of the Scotland Act 1998 would enable the Scottish Parliament to legislate for a referendum on the basis set out above. If the UK Government is unwilling to agree to such an adjustment without dictating unacceptable conditions, the Scottish Government will have the option of a referendum on the basis set out in paragraph 1.5. [i.e. a question like their 2010 draft which was designed to be within the limitations of existing legislative competence.][16]

The Committee, who have now called for powers to hold the referendum, said : “The Scottish Government, however, published no legal analysis, and the Lord Advocate, the Rt Hon Frank Mulholland QC—who is a member of the Scottish Government, and as its principal legal adviser will have advised his Ministerial colleagues on what their powers are—has made no contribution to debate on this issue. The Scottish Government nevertheless asserts that a referendum with a question about more devolution, or actually about separation but designed to look as if it were about extending the Scottish Parliament's powers, would be within its legislative competence.

25. We find the silence of the Lord Advocate remarkable. It is well understood that Law Officers do not, save exceptionally, make their advice public, but, on a matter such as this, there is a very strong public interest in understanding the legal basis of the Scottish Government's approach to a process which will determine the future of the country.”

However, as observers to the debate on the independence referendum will by now be well aware, it is not just Lord Advocate Frank Mulholland who has been seemingly gagged by the Scottish Government, who are also fighting a Freedom of Information order to release documentation relating to legal advice issued over the referendum, also reported by BBC News :

Scottish independence: Ministers to appeal EU FOI order

The Scottish government has said it will appeal after being ordered to reveal whether it holds legal advice on the status of an independent Scotland within the EU.

Labour MEP Catherine Stihler made an FoI request last May, asking the Holyrood administration for any legal advice it had received on the issue.

Ministers refused to reveal whether the information was held.

But Scotland's FoI Commissioner ruled its release was in the public interest.

Rosemary Agnew, the country's 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 said an independent Scotland's position 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.

Catherine Stihler Catherine Stihler described it as "a landmark judgement"

The Scottish government cited Section 18 when it refused to reveal whether the information was held. This can mean the information would be exempt from release or the authority considers its release would not be in the public interest.

The Labour Party said that in October 2011, Culture Secretary Fiona Hyslop wrote to Ms Stihler saying that "we consider that to reveal whether or not the information you have requested exists, or is held by the Scottish government, would be contrary to the public interest".

However, following Ms Agnew's ruling, ministers have until 21 August to reveal the information.

A spokesman for the Scottish government said it had been "surprised" by the commissioner's decision.

He added: "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."

She added: "People have a right to know whether an independent Scotland would be part of the EU and on what terms, but the SNP want to keep it secret.

"By refusing to confirm or deny, Alex Salmond effectively took out a superinjunction against the people of Scotland.

"Now the Information Commissioner has ordered him to own up. She has ruled that approach is in breach of the law, which is a groundbreaking and welcome decision."

A Scottish government spokesman said: "We have received the decision and are considering its terms."