Mr Salmond and the Schrodinger’s Legal Advice on the EU – An Issue Which Will Not Go Away?

This past week has seen what has been a smooth running SNP machine start to sputter and misfire. The apparently dry issue of legal advice to the Scottish Government about admission to the EU of an independent Scotland (the dry issue being the legal advice rather than independence or EU admission) exploded as a result of what seemed to be differing versions of the same matter from Mr Salmond and Ms Sturgeon. Ms Sturgeon’s comment that now, following the Edinburgh Agreement regarding a referendum, the Scottish Government would be seeking legal advice on EU membership was in contradiction, it appeared, to what Mr Salmond had told Andrew Neil in an interview earlier this year.

Political opponents and the media sought to drive wedges into the crack which seemed to have opened up between them.

What has been said on the official record by Mr Salmond?

(There now follows a lengthy analysis of what has been said on the record and of the Ministerial Code and of the Scottish Information Commissioner’s ruling on the point. If you want to skip that, I have some commentary at the foot of the article. If you would rather skip my analysis, and who can blame you, then feel free to stop at the end of Mr Salmond’s last quote. Thank you.)

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On 10th November 2011 the issue was raised by Iain Gray at First Minister’s Questions (FMQ) with specific reference to joining the euro currency, but also in the context of EU admission.

He asked:-

If the First Minister has crystal-clear legal advice on the question, will he publish it?

Mr Salmond replied:-

I refer Iain Gray to paragraph 2.3 of the Scottish ministerial code concerning legal advice, its assistance and its publication.

Perhaps I can help him by citing some authorities. Lord Mackenzie-Stuart, the only Scottish judge to have been President of the European Court of Justice, was asked to address the point about Scotland and the rest of the United Kingdom in the event of independence. He 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.”

I think that we can reasonably say that the late Lord Mackenzie-Stuart was an authority on such matters, but I have no knowledge that he was ever friendly towards the SNP’s position. However, he looked at precisely that question and his argument was very clear from that quotation. Incidentally, “I am puzzled” is legal speak for “I don’t understand the argument that’s being put forward.” The point that he put forward very clearly is that Scotland and the rest of the UK would be in exactly the same legal position.

I will turn to what that legal position might be. I will quote Eamonn Gallagher, who is a former director-general of the European Commission and ambassador to the United Nations in New York. He said:

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

I am quite happy to quote to Iain Gray a range of other authorities. I hope that he accepts that they are important legal authorities whose views have been published. I hope that he has read them and that he will now abandon his attempt to suggest that Scotland, with its enormous natural resources, its dominant position in the European Union’s oil and gas resources and its great renewable resources, would somehow not be wanted by the rest of the European Union. (Emphases added)

Mr Gray responded:-

As for the legal advice, everyone knows that if Alex Salmond had legal advice that agreed with him on the point, he would have found a way to get it out. Fiona Hyslop says that letting Scotland know whether his policy will cost Scotland £8 billion would be contrary to the public interest. I do not think so. Does not she really mean that it would be contrary to the SNP’s interests, so they are going to keep it secret?

Mr Salmond retorted:-

We are making progress; Iain Gray has read—this morning—the legal advice of some of the most credible people to have addressed the question. Let me give him a quotation from another credible person. The first and longest-serving secretary general of the European Commission, Emile Noël, said that 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.”

So we come to Iain Gray’s dramatic admission before the members in the chamber that it might well be that the rest of the UK would have to join the euro. Now we understand the entrenched opposition of the unionist parties to Scottish independence. It is not about Scotland: they are worried that England and the rest would be forced into membership of the euro. As successor states, both parts would inherit rights and obligations, including the opt-out that was negotiated by the UK.

I offer Iain Gray a further point of reassurance. Sweden—a new member—is not in the euro. Why is that? It is because the people of Sweden said that they did not want to join it, and the European Commission accepted that. Let us sweep away all the scaremongering and accept that Scotland is a European nation, and that right across Europe, people will be anxious to see Scotland have the same rights and obligations as other European Union members.

The question about legal advice was fudged and glossed over (apologies for the mixed metaphor) at the same time. The first line I highlighted above was the only specific reference to the question, and I will come to the Code below.

Then the fudge lay in referring to various legal authorities, although the force of the argument seemed slightly dented by the line “I will turn to what that legal position might be”.

The answers given above imply, without Mr Salmond saying so specifically, that the Scottish Government had received legal advice on the issue, but that he was not going to disclose it, whilst there were a number of published opinions from legal experts which also backed the SNP position.

Turning to the Ministerial Code, the relevant sections read as follows:-

The Law Officers

2.30 The Scottish Law Officers (the Lord Advocate and the Solicitor General for Scotland) have Ministerial responsibility for the provision of legal advice to the Scottish Ministers on all matters relating to the law of Scotland. However, they cannot and do not advise on every legal issue which may arise. The primary source of legal advice for the Scottish Government (including Cabinet Secretaries and Ministers) is the Scottish Government Legal Directorate ( SGLD). Ministers and officials should be alert to the public interest in ensuring that their decisions are taken in a fully informed legal context and should ensure that the legal implications of any course of action are considered with SGLD at the earliest opportunity and that all briefing to Ministers is informed by SGLD’s advice on the legal considerations. Ministers should always take account of the public interest in maintaining the right to confidentiality of communications between legal advisers and the fact that release of the content of legal advice is likely to be appropriate only in highly compelling cases.

2.31 The Law Officers are concerned to ensure that the Government acts lawfully at all times. Accordingly, the general principle is that they must be consulted in good time before the Government is committed to significant decisions involving legal considerations. The process of obtaining an opinion of the Law Officers, if advice is expressly sought, will normally be a request on a reference from SGLD. That may be at the instance of Ministers, SGLD or the Law Officers themselves. Submissions to Cabinet Secretaries and Ministers raising legal considerations are copied to the Law Officers for information or awareness. Sometimes the Law Officers will comment on such submissions, but often they will simply note them. Either way, the Law Officers are not to be taken as offering a legal view on the contents of such a submission. If the Law Officers’ legal advice is required, it should be sought by a reference from SGLD for an opinion.

2.32 The following are examples of the kind of situation in which the advice of the Law Officers should be sought:

(a) The legal consequences of action by the Government might have important repercussions;

(b) A legal adviser in the Scottish Government has doubts about the legality or constitutional propriety of proposed legislation or executive action;

(c) Ministers, or their officials, wish to have the advice of the Law Officers on questions involving legal considerations; or

(d) There is a particular legal difficulty that may raise sensitive policy issues.

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. Views given by the Law Officers in their Ministerial capacity are not subject to this restriction.

This therefore lays out the process for the Scottish Government to obtain legal advice.

Step 1 – ask the SGLD.

Step 2 – only where necessary, ask the Law Officers by way of a formal request from the SGLD.

The Scottish Parliament Report appears inaccurate in quoting Mr Salmond as referring to paragraph 2.3.

In terms of the Code, different considerations apply whether the advice is given by the Law Officers or someone else, such as the SGLD.

Unless the Law Officers consent, the Government cannot reveal whether or not the Law Officers have given advice or not. In addition the advice from the Law Officers, if it has been given, cannot be disclosed without the Law Officers’ consent.

It is not a breach of the Code for the Government to disclose that advice has been received from elsewhere, such as the SGLD. It might be argued that the SGLD is effectively a part of the Law Officers, but that is not what the Code says.

Advice from elsewhere, such as from the SGLD, cannot be disclosed without the Law Officers’ permission, as would also be the case if advice was commissioned from outside sources.

Therefore the answer in November was a fine politician’s answer – meaning it was a non-answer!

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On 25th January 2012 Patricia Ferguson raised the matter at FMQs:-

I am pleased that the Government’s consultation document, which was published today, acknowledges that an independent Scotland would open formal negotiations with the EU. Of course, many of us have known for some time that that would be the case. Having conceded that principle, will the First Minister publish the legal advice that his Government has commissioned on that issue?

Mr Salmond dead batted his answer:-

I have referred before in the chamber, and I can, for Patricia Ferguson’s benefit, refer again, to a range of legal authorities who support the Scottish Government’s position. Just to correct her, I say that it has never been our position that there would not be negotiations; the point is that negotiations would be held from within the context of the EU.

The precise point was made best by Lord Mackenzie Stuart. The United Kingdom was formed by the treaty of union between Scotland and England in 1707. If that union is dissolved, two successor states will be created, each of which will have the same obligations and rights as the other and both of which will negotiate their position from within the context of the EU.

I say to Patricia Ferguson that there is absolutely no evidence whatsoever that there is any body of opinion in the EU that would not welcome Scotland and the rest of the UK to continuing membership of that organisation.

So, no attempt even to deflect the question of legal advice, instead referring to a “range of authorities”.

However the MSPs were not minded to let the matter go. James Kelly asked:-

It is important that any referendum is legally competent and does not simply have the status of an opinion poll. Will the First Minister therefore state what advice he has taken from the Lord Advocate on whether the referendum would be legally binding? Will he publish that advice?

Mr Salmond came back with:-

I give the member some general advice. There is no such thing as a legally binding referendum in a pure sense in the United Kingdom because the United Kingdom principle is of course one of the sovereignty of the Queen in Parliament. The vast majority of referenda that have been conducted in the United Kingdom in recent years have been conducted as consultative referenda. They have force, of course, because most democrats—just about every party—acknowledge the will of the people.

On the issue of legal advice, Mr Kelly should know that no Government that I know of—the only example that I can think of is the forced publication of the legal advice on Iraq—publishes or confirms such things. Every document that the Scottish Government has published fully conforms to the legal position as we understand it; otherwise, we would not publish the documents.

It should be noted that it appears Mr Salmond has erred in his response. Publication of legal advice can be done with the consent of the Law Officers. It is only the existence or otherwise of legal advice from the Law Officers which cannot be confirmed without Law Officers’ consent. It is entirely in order for the disclosure of whether or not there has been advice from other sources and, I submit, in terms of the SGLD, that is not covered by the Law Officers’ exemption.

In the field of football debate, there is often reference to “whataboutery”. Mr Salmond indulges in that here. Quite what the Iraq war had to do with the question did not get in the way of a snappy soundbite for the news.

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On 13th September 2012 the issue arose again. In response to the Leader of the Opposition Mr Salmond said:-

I remind Johann Lamont, from history, that even when a country was trying to leave the European Union, as in the case of Greenland, it had to negotiate its leaving from inside the European Union. Quite clearly, Scotland is part and will remain part of the European Union and the necessary negotiations will take place from within that context. Incidentally, as has been discussed with her predecessor, exactly the same thing applies to the rest of the United Kingdom, which, in the words of Lord Mackenzie-Stuart, will be in exactly the same legal boat.

Johann Lamont referred to the question of publication, or acknowledgment of existence of, legal advice. She must know, because she has been a minister and has dealt with exactly these things herself, what the Scottish ministerial code says on the matter, in paragraph 2.35. The fact that legal advice has been given to ministers, or the fact of its existence,

“must not be revealed outwith the Scottish Government”,

unless under some clear circumstances—

Members: Ah!

Mr Salmond again fails to refer to the full terms of the rule. This is ironic when part of the attack on the opposition this week was for allegedly missing out part of Mr Salmond’s answer and thus giving an incorrect impression of what he meant.

Once again Mr Salmond avoids a straight answer to a straight question.

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The matter arose again the following week, on 20th September 2012. Mr Salmond had this to say:-

On the specifics of the European question and legal advice, I think that my comments last week, when I pointed out that the white paper will be informed by the legal advice at that time, offer a solution on providing the information to the Scottish people and complying with the terms of the Scottish ministerial code. I know that Johann Lamont would think it a tragedy if I were to break the ministerial code, and that she would not really want that to happen.

I was not judging the success of my previous answer on the basis of the cheering from the back benches; I was judging it on the basis of Johann Lamont’s countenance, which was extremely worrying. If I am not careful, I will end up on leave with Rami Okasha or swimming with the fishes with Colin Smyth. If people get removed for insubordination within the Labour Party, goodness knows what would happen if Labour ever inflicted on the people of Scotland the misfortune of its being back in government.

Mr Salmond again misrepresents, I am sure accidentally, the Ministerial Code. And in all of this, he fails to address the simple question – would he be willing to ask the Law Officers for permission to disclose whether or not there had been advice from them.

Now we come to last week.

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On 23rd October 2012, Deputy First Minister, Nicola Sturgeon, said this to the Parliament:-

In light of the Edinburgh agreement, by which both Governments have agreed the process for Scotland to achieve independence, I can confirm that the Government has now commissioned specific legal advice from our law officers on the position of Scotland within the European Union if independence is achieved through this process. The Scottish Government has previously cited opinions from a number of eminent legal authorities, past and present, in support of its view that an independent Scotland will continue in membership of the European Union but has not sought specific legal advice. However, as the Edinburgh agreement provides the exact context for the process of obtaining independence, we now have the basis on which specific legal advice can be sought. The views of those other eminent authorities will continue to be highly relevant, but the Government’s position in the independence white paper will be based on and consistent with the advice that we receive.

Given that my statement answers the ruling of the Scottish Information Commissioner on the existence of legal advice, there is now no need for the Government to pursue its appeal against that ruling in this specific case, and I have asked our lawyers to advise the court accordingly and to ask that the appeal be dismissed.

I should also make it clear that, in confirming that the Government has asked for law officers’ advice, I have sought and received the prior agreement of the Lord Advocate. This statement is therefore consistent with paragraph 2.35 of the ministerial code and the long-standing convention on which that section of the code is based, both of which will continue to be vigorously upheld by ministers. The confirmation that I have given relates to the particular circumstances of the issue and does not set a precedent.

What is this Information Commissioner’s appeal she was talking about?

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The determination by the Commissioner can be read here.

The Summary reads as follows.

In May 2011, Ms Stihler (who is an MEP) asked the Scottish Ministers (the Ministers) whether they had taken legal advice on the status of Scotland within the European Union (EU) should Scotland choose to break away from the United Kingdom and, if so, whether she could be provided with a copy. However, the Ministers refused to reveal whether they had such legal advice. Following a review, Ms Stihler remained dissatisfied and applied to the Commissioner for a decision.

The Commissioner found that the Ministers had failed to deal with Ms Stihler’s request for information in accordance with Part 1 of FOISA, by failing to reveal whether, as at the date they received her request, the legal advice existed or was held by them. If the information exists or is held, she required the Ministers to either provide the information to Ms Stihler or to issue a refusal notice, in terms of section 16 of FOISA, explaining why it is judged to be exempt from disclosure. If the information does not exist or is not held, she required the Ministers to notify Ms Stihler, in terms of section 17 of FOISA, that they do not hold the information.

In more detail:-

On 30 May 2011, Ms Stihler wrote to the Ministers in connection with legal advice regarding the status of Scotland within the EU should Scotland choose to break away from the United Kingdom. Ms Stihler asked the Ministers if any such advice had been given to them and, if so, whether the advice was publicly available. Ms Stihler also asked for a copy of any legal advice that had been given to the Ministers on this subject.

The Ministers responded on 4 August 2011, giving notice under section 18(1) of FOISA. Section 18(1) allows Scottish public authorities to refuse to reveal whether information exists or is held by them, where, if the information did exist and was held by the authority, the authority could give a refusal notice under section 16(1) of FOISA on the basis that the information was exempt information under any of a number of specified exemptions and if the authority considers that to reveal whether the information exists or is held would be contrary to the public interest. The Ministers advised Ms Stihler that the exemptions in sections 29(1)(a) and 30(c) of FOISA would apply if the legal advice existed and was held by them.

On 18 August 2011, Ms Stihler wrote to the Ministers requesting a review of their decision. Ms Stihler commented that the public interest clearly favoured disclosure of the advice and suggested that the release of such advice was not without precedent. She stated that the people of Scotland deserve to know the full facts before any referendum should be held on Scottish independence.

The Ministers refused the review.

The case was then referred to the Commissioner.

After a detailed analysis, and having agreed that the Ministers were entitled to with-hold the information, the issue came down to whether or not the refusal to say if the information existed at all was “in the public interest”.

Here the Commissioner found against the Ministers. She wrote:-

48.Having concluded that, if the legal advice existed and was held by them, the Ministers would have been entitled to give a refusal notice under section 16(1) of FOISA, the Commissioner is required also to consider whether the Ministers were entitled to conclude that to reveal whether the information sought by Ms Stihler existed or was held by them would be contrary to the public interest.

49.The Ministers provided the Commissioner with an explanation as to why they believed it would be contrary to the public interest to confirm or deny whether the relevant information existed or was held. The Commissioner is unable to set out these submissions in this decision, but she has considered them fully.

50.In her submissions, Ms Stihler argued that the Scottish Government has a commitment to open and transparent government, so refusing to confirm or deny whether it had taken advice on a matter of profound public policy was at odds with its own preferred approach. In Ms Stihler’s view, it was hard to see what arguments could credibly be advanced in the cause of such secrecy. In her view, the information contained no threat to national security, it did not involve any on-going investigations, there were no matters of data protection and it did not involve any police matters.

51.Ms Stihler also pointed out that the issue was so much to the fore that the House of Commons Library had published a Standard Note [1] on this matter on 8 November 2011, highlighting the stance of the Scottish Government and contrasting other similar positions.

52.In the Commissioner’s view, the role of FOISA is important not only in enabling transparency in information held by public authorities, but also in enabling transparency in information about process. In this case, whilst the Commissioner has concluded that, if the advice existed and was held by the Ministers, they would have been entitled to issue a refusal notice under section 16(1), 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. While it is a matter for Ministers to take the approach they consider appropriate, this would enable interested parties to form their own opinions on the way in which Ministers develop policy and take decisions.

53.The Commissioner recognises that Ms Stihler’s request was made at an early stage in the Government’s development of its policy in relation to Scotland’s potential membership of the EU. Nonetheless, the Commissioner considers there is a strong public interest in allowing the public to understand the process by which this policy would be formulated.

54.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.

55.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.

It was this decision which was appealed by the Ministers, until Ms Sturgeon said it was being abandoned.

It is noteworthy that the reasons why the Ministers believed the existence or otherwise of the information should not be disclosed were themselves secret!

It is also noteworthy that the Ministerial Code does not trump the law of the land, although that appears to be part of the argument in the appeal.

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Later on 23rd October the First Minister came to the Parliament to make a statement:-

Thank you, Presiding Officer. With your permission, I wish to make a short statement in the light of the point of order that Willie Rennie made earlier this afternoon.

I have repeatedly made it clear in the chamber and elsewhere that, under the terms of the ministerial code, neither I nor other ministers can comment on either the existence or the content of legal advice without prior permission from law officers. We now have that permission in one specific case, as the Deputy First Minister outlined earlier today.

I have maintained that position in the chamber on a number of occasions since March 4 this year—the date of my BBC interview with Andrew Neil, to which Willie Rennie drew attention. As the full transcript of that interview makes very clear, I was talking about the issue of Scotland’s continued European Union membership in terms of general debate and in terms of many eminent legal opinions that were offered.

I was also—as the interview makes clear—speaking in terms of the various Scottish Government documents that contain reference to an independent Scotland’s membership of the European Union. Those publications are, “Choosing Scotland’s Future”, which was published in August 2007, at page 24; “Your Scotland, Your Voice”, which was published in November 2009, at page 107; and “Your Scotland, Your Referendum”, which was published in January this year, at page 4. All those documents are underpinned by legal advice from our law officers: they have to be. That is the reality.

I will read very briefly the transcript—the full transcript—of the interview. I cited Eamonn Gallagher, Emile Noël and Lord Mackenzie-Stuart as eminent authorities. Andrew Neil then said to me:

“We’ve established that it is unprecedented, although you’re trying to give a guarantee. Have you sought advice from your … Scottish Law Officers in this matter?”

I replied:

“We have, yes, in terms of the debate, and obviously…”

At that stage, he interrupted and asked:

“what did they say?”

I said:

“Well you could read that in the documents that we’ve put forward, which argue the position that we’d be successful.”

He asked:

“But what do they say?”

to which I replied:

“You know I can’t give you the legal advice, or reveal the legal advice of Law Officers. You know that Andrew.”

He said:

“But this is about the future of Scotland”,

to which I replied:

“Yes but what you can say is everything we’ve published is consistent with the legal advice that we received.”

In the interview—as is clear from that full transcript—I specifically refused to depart from the convention on specific legal advice, despite being pressured to do so by Mr Neil. Indeed, that is the position that I and other ministers have held to at all points subsequent to the interview and until earlier today, when the Deputy First Minister made her statement to Parliament, with the permission of the law officers.

I am happy to place a full transcript of that interview in the Scottish Parliament information centre at the earliest opportunity. Unlike some of the partial accounts and transcripts that have been circulated elsewhere, it makes that position and the content absolutely clear.

Finally, in one of the partial transcripts, I have been described as “a bare-faced liar”. The quotation that is used to justify that has me saying in response to Mr Neil:

“We have, yes … You know I can’t release the legal advice of law officers, Andrew.”

It misses out 27 words across three separate answers, which can be seen in the full transcript. I ask Paul Martin, as a member of the Scottish Parliament, to reflect on the number of adjectives we could include in 27 words between the names “Paul” and “Martin”. That is no way to conduct a debate. The full transcript of the interview will be in the Scottish Parliament information centre, and members will be able to see that what was being talked about was Government documents and publications. I hope that, at a suitable opportunity, those who have made those assertions—although admittedly they did so outside the chamber—will have the courtesy and integrity to withdraw them.

The leader of the Lib Dems, Willie Rennie, followed up by asking:-

Further to my earlier point of order, Presiding Officer. Despite the First Minister’s attempt, I am afraid that he has not cleared up the matter. He was asked a simple question by Andrew Neil, who is a respected journalist for the BBC. He was asked if he had sought the advice of his law officers. He said, “We have, yes.” It was a straightforward question and he answered, “Yes, we have received advice from the law officers.”

This is a very serious matter, Presiding Officer, because the First Minister has not cleared up the issue. He said,

“Everything that we have said is consistent with the legal advice we have received.”

He said “received”, and the context was that he was talking about the law officers. The First Minister has not cleared up the matter. I urge him to come forward and clarify exactly what he said, because he has not done so, so far.

Mr Salmond responded with:-

I admit that Willie Rennie did not add some of the descriptions that other people have used, but it is not a good idea for him to miss out the phrases

“in terms of the debate”

and

“Well you could read that in the documents that we’ve put forward, which argue the position that we’d be successful.”

As I have pointed out, all the documents that I have listed were underpinned by legal advice from our law officers. That is different from the specific legal advice on a specific matter that the Deputy First Minister announced to members this afternoon. Any fair-minded person—I am aware that that excludes a number of people—would consider that the matter has been well and truly cleared up by the full transcript of the interview.

 

Where Does This Leave Matters?

Both in his interview with Andrew Neil, and his previous appearances at Holyrood, Mr Salmond either intended to imply that advice had been given, or was careless as to whether that impression had been given. Bearing in mind the vital issues in this regard, it might in fact be a breach of the Ministerial Code not to have explored these specific issues with the Law Officers before the referendum ground rules were agreed with Westminster.

The mention by Nicola Sturgeon was an attempt, though a ham fisted one, to “draw a line” under the issue. However her statement suggested a recklessness regarding these vital matters on the part of the Cabinet in Edinburgh.

Whilst the various authorities cited by Mr Salmond are eminent, surely specific advice would be taken?

And, if my interpretation of the Ministerial Code is correct, why could he not confirm that there had been advice from the SGLD. The Law Officers’ consent was not needed for that to be given.

As regards the Schrodinger’s advice from the Law Officers, was it ever Mr Salmond’s intention to ask for permission to reveal whether or not it existed? Did he ask and was refused?

It would seem strange that the Law Officers might refuse to confirm or deny that advice had been given, if asked by their boss to agree to do so. Clearly the Law Officers had no qualms about agreeing to Ms Sturgeon’s announcement, although the fact that the Ministers were going to ask for the advice of the Officers is disclosable without breaching the Code. The Code only applies to advice given or not given in the past, not advice yet to be obtained.

One of the vital issues in the referendum is the legality of the process. It is anticipated that the legislation setting the referendum up is likely to be subject to challenge as ultra vires by campaigners. Principally of course it is likely to be those supporting the Union who might want the polling cancelled.

However, there is a Machiavellian theory doing the rounds that, should Mr Salmond think that a “No” vote would be returned, it would not be unhelpful for a challenge to be made to the enabling legislation which might delay the vote until after the next Holyrood elections. Mr Salmond would feel happier, the theory goes, going to the people when serving his next term, rather than during this, where defeat would probably lead to his failure at the next election too.

I am not suggesting that Mr Salmond or the SNP would have anything to do with such a plan. However, the effect could be very useful for the First Minister.

Has Mr Salmond misled the Parliament (as it is not yet an offence punishable by Parliamentary censure to allegedly mislead Andrew Neil)?

It is true to say that Mr Salmond’s words are always carefully weighed. They are also very precise in normal circumstances.

Whilst Mr Salmond clearly suggested to Andrew Neil that there was such specific advice, he appears never to have given such a hostage to fortune in Parliament. He either fudged the reply, or delivered no response at all.

The more serious point in all this is that, until after the agreement was reached with London about the referendum, the Scottish Government had not taken “specific advice”. It is akin to signing a contract and only then asking your lawyer for his opinion – by then the ship might have sailed. Much of legal practice involves telling a client, politely, “You ought not to have done that”, and then trying to sort out the resultant mess.

Hindsight is always perfect. Surely the sensible answer would have been to confirm that, in accordance with the Ministerial Code, legal advice was taken on all relevant matters, and that, when and if necessary, this could be published. After all, the legalities will form one of the battlegrounds of the referendum and surely the Ministers will, at some stage, have to justify the position in the face of reasoned criticism?

Mr Salmond has appeared, for many years, to be a consummate politician (which is intended as a compliment). However on this issue he seems to have found himself in a bind, and the forensic parsing of his answers to show how in fact he has remained consistent all the way through is reminiscent of Bill Clinton’s “It all depends on what the meaning of the word ‘is’ is” defence.

Why should the Ministerial Code prevent Ministers stating whether advice has been given on a specific topic? Because asking about specific issues would be a good way of trying to find out what the Ministers intended to do. However there are some issues where (a) surely proper and full advice could have been taken at an early stage and (b) there would be no prejudice in so stating.

I suspect that, going forward, there will be a continuing clamour for the Law Officers’ advice to be published. It is likely that Mr Salmond will refuse to do so, throwing in barbed comments about Iraq, for instance. Eventually the row about publication of the advice will dwarf the undoubted importance of the issue, and eventually it will be published anyway, either officially or via a leak.

Mr Salmond could, decisively, resolve the matter now by agreeing to publish the advice, whilst stating, as Ms Sturgeon did on 23rd October, that this created no precedent, and was a “one-off” decision. I do not think he will, and the dry issue of the Law Officers’ advice will keep us entertained as we grind forward over the next two years towards the referendum.

Posted by Paul McConville

 

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37 Comments

Filed under General Scots Law Rambling, Independence, Politics, Uncategorized

37 responses to “Mr Salmond and the Schrodinger’s Legal Advice on the EU – An Issue Which Will Not Go Away?

  1. redetin

    The BBC is close to collapse around the Savile affair. Newspapers await the findings of the Leveson Enquiry, though most people will have already seen editors and proprietors squirm under forensic questioning by a rather droll QC.

    I refer you all to Newsnet Scotland where you will see a recent dissection of interviews with so-called “commentators” on the subject of what Alex Salmond said. There is little attempt to provide clarity and accuracy.

    http://www.newsnetscotland.com/

  2. redetin

    I mean little attempt by the MSM.

  3. Jono

    Very interesting Paul, and so the politicking begins…the anti-independance side now have something concrete-ish to go after. Mr Salmond, as you indicate, is a consumate politician…normally, and so the win for his opponents is that he is defending in a clearly uncomfortable manner, not like him, and his opponents know it. The fact that they are beggining to get soomewhere in attack, is more important than the issue. They need to find something else though because this one can’t run 2 years can it?

    I watch these matters with great interest, and have noted that there is something amiss with Mr Salmond generally, not sure what it is, but it pre-dates the shindig and awkward votes in Perth. You’ll notice if you watch his performances that the robust mocking of questioners has changed such that he chuckles more nervously, almost requireing the chuckle to do the work for him. Unusual body language, and surely someone who is stressing about something!

    I nail my colours to the mast for the record…I will vote “Yes” on the reasoning that the only reason to vote “No” is that you want everything to stay exactly as it’s always been, and that’s not my view. However, I like watching the game for it’s own sake and have no particular love-in with the SNP. So seeing Mr Salmond have to up his game as the third division opposition get the rare good result provides much pleasure to me, sad though that is!

  4. carl31

    Redetin,
    IMO the site you link to, newsnetscotland, is an SNP propaganda site and fails the ‘fair and balanced’ test.

  5. Marching on Together

    The SNP has form on this. Earlier this year Sturgeon trotted off to Brussels and came away claiming (through her spokesman) that the relevant EU Commissioner had agreed that the SNP’s legislative proposals for minimum pricing of alcohol were legal under EU law. The Commissioner later that day issued a statement claiming that he had said no such thing, demonstrating clearly that Sturgeon had lied (or a the very least her spokesman had lied with her authority and without her correcting him).

    Interestingly this was another issue on which they refused to confirm the existence or otherwise of legal advice on the legality of the proposals in response to a request made under FoI, despite Sturgeon repeatedly claiming that the proposals were legal (and definitely giving the impression that they had taken legal advice on the matter).

  6. redetin

    carl31
    Fair comment, Newsnet Scotland is a pro-Independence website no doubt but is not run by the SNP. There are also several unionist websites that people of that view can support. My point is that BBC TV/Radio, Herald, Scotsman, Record, Sunday Post, Independent, Guardian, Telegraph, Mail, Mirror, P&J…all are supporting the status quo of the UK.
    Surely we we are entitled to look for “balance” in the overall media coverage, especially the publicly-funded BBC? One only need glance at the daily headlines to see that the MSM sadly lacks that balance.

    • Marching on Together

      “There are also several left-wing websites that people of that view can support. My point is that BBC TV/Radio, Herald, Scotsman, Record, Sunday Post, Independent, Guardian, Telegraph, Mail, Mirror, P&J…all are supporting the left-wing ideology that got us in this mess in the first place. Surely we we are entitled to look for “balance” in the overall media coverage, especially the publicly-funded BBC? One only need glance at the daily headlines to see that the MSM sadly lacks that balance.” – Margaret Thatcher

      • redetin

        Sunday Post, Telegraph, Mail…supporting left wing ideology? Margaret, I ken ye’re afa nae weel but deary me, deary deary me!

    • carl31

      Redetin,
      A couple of points…
      Most of these organs you mention are in the commercial world interested in sales. Going by the polls, only about a third of Scots support independence, so the market coverage might be about 3-4% of the UK prorata for population roughly. Their leaning is no surprise, but doesn’t itself indicate imbalance.
      The BBC is publicly funded, but its Westminster funded – again this doesn’t prove anything, but its reasonable to consider that this would be reflected in its overall output.

      Also, I’m a firm believer that the internet is by far the better source of info and news for the discerning individual. The printed media or MSM’s day has passed. A piece such as this one by Paul is a fine example.

      • redetin

        carl31
        Agreed, I think the MSM has had its day. Unfortunately we still don’t have a local equivalent of “What Really Happened?” but blogs like Paul’s are a great help.

  7. Hi Paul,
    As I see it Mr Salmond had legal advice when he published the various documents in that the lawyers are always consulted on the legality of the documents published. He also relied on expert opinion from sources out-with the government on the specific issue of Scotland within the E.U.
    I can not agree with your opinion that “…fact that the Ministers were going to ask for the advice of the Officers is disclosable without breaching the Code. The Code only applies to advice given or not given in the past, not advice yet to be obtained.”
    Because that would indicate that advice had not been given, in breach of “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. …)
    I would argue that the issue of membership is primarily a political one rather than a legal one. Any legal advice from our own law officers could be trumped by a European Parliament answer in February, Commissioner Maros Sefeovie said that the Commission was unable to express a view “given that the terms and result of any future referendum are unknown”.
    In other words they seem unwilling to give an answer which would benefit either side in the debate.
    I am left with the question, since all UK citizens are also citizens of the E.U., how would the E.U. propose to expel those citizens who happen to live in Scotland? It seems clear that both successor states will have to renegotiate their position from within the E.U. In those circumstances the E.U. would have to propose that they expel one or both successor states from the E.U. if they could not reach agreement, that seems unlikely. It is more likely that the Conservative Party will put the issue of membership to a referendum which, if the polls are to be believed, would almost certainly guarantee that the whole of the UK would leave the E.U.

    • Marching on Together

      “I would argue that the issue of membership is primarily a political one rather than a legal one.” This is indeed correct, so consequently you cannot be sure what the politics surrounding any negotiations about EU membership will be until the time.

      The point though has always been that the SNP have contrived to give the impression that there will be no problem with continued membership of the EU and that the transition will be seamless. This is clearly not the case whether viewed politically or legally, and the SNP simply cannot guarantee that Scotland will be a continuing member of the EU after independence.

      • You are correct in stating that an absolute guarantee cannot be given that either Scotland or the rump UK will maintain membership of the EU under any circumstances, but then there is no absolute guarantee that a meteor will not wipe out all life on earth in the future.
        It is highly likely however that they will remain in the EU as a result of the secession of Scotland from the union (but not if Cameron has a referendum on the issue as he has promised). There is no legal framework for the removal of a state from the EU. We are not a region of England (though some would like to think so) we are a separate nation, recognised as such by the UN and the EU, therefore the circumstances of Catalonia do not exist. It is highly likely therefore that EU membership will continue but the fine details will have to be ironed out by negotiation (eg numbers of representatives for each succeeding state and the rUK rebate).

        • Marching on Together

          So whenever the SNP have indicated that the process would be seamless, nay automatic, that there would be no change, and everything would be hunk-dory, they were lying.

    • ecojon

      @ Bill Fraser

      I have often wondered about the position of dual Nationality in that, if a Scottish referendum votes in favour of independence, does anyone living in Scotland still retain UK Citizenship as well as, presumably a new Scottish Citizenship.

      Or is a new Scottish Citizenship not automatically conferred through residence in Scotland at the time of the referendum but specifically need to be applied for by an individual? What rules will then be applied to qualify for Citizenship?

      In a way this harps back to the point that Scots in England aren’t allowed a referendum vote but non-Scots in Scotland are. I have never personally made my mind up on the electoral ‘fairness’ of this position and look upon it as another part of the political smoke and mirrors of the SNP that important discussions and decisions should all be delayed until ‘after’.

      If chico is the snake oil salesman then Alex embodies the ‘market’ in snake oil and in many years of watching his slippery and juddering progress I have seldom seen any grit impede the wheels of SNP progress. But it has happened on the legal advice issue and I am still at a loss to determine why that is.

      To be honest I have always thought that Trident, Nato, the economy, Euro membership, currency, National Bank and a host of other subjects are much more important and potentially pose bigger banana slips.

      Alex – the ex banking economic advisor even gaily skated over his congratulation to Fred the Shred for the fateful decision to buy the bank which almost destroyed RBS.

      His support of the tiger Celtic economies as a model for the independent Scotland was also proven to be a pipe-dream and, yet again, the Scottish MSM turns it’s Nelson Eye and ignores the fallabilities exposed.

      • The normal position taken is that individuals retain their original nationality and add the new one as happened in Ireland for example. The rUK could not remove British Citizenship from anyone who did not also want Scottish citizenship as that would leave them stateless which is illegal under international law.
        As to your point about Scots living in England not receiving the vote, they are not Scottish citizens under the law, they are British citizens, would you include Scots living in Canada or any other country with dual citizenship and no intention of returning? It is a practical and fair way to conduct the voting based on the local election registers, if anyone living out-with the country wishes a say they can move back.

  8. 100bjd

    Good article Paul. I really should not comment as a true born Scot living in England for career reasons and therefore not allowed a vote. Salmond is on the backfoot on this issue. He should be on the backfoot also for a basic business plan for Scotland PLC although he seems, from my eyrie in England at least, to be able to politic his way through the business case…..or lack of it.

  9. John Burns

    Salmond displays all the characteristics of Murray, Whyte and Green combined – Murray “I am the big boss, I can do whatever I please and don’t challenge me” – Whyte (re Ticketus) “there are certain things I can’t reveal about the transaction, as they are commercially sensitive” – Green – “any reasonable person can see what I am trying to do is all above board and everyone else has an agenda against us”

    Salmond, Sturgeon and his inner circle have been judged as liars in the court of public opinion – he and his cabal are now ‘damaged goods’ and will not be believed in future unless they produce ‘cast-iron’ evidence to back-up each and every claim they make.

    Automatic entry to the EU is merely an item on Salmond’s wish-list, together with cherry-picking which bits of the armed forces he wants, keeping the pound sterling as the currency, tying the Scottish economy to the Bank of England,we will retain 80% of all oil revenue,salami-slicing NATO membership, asserting that the UK will still build defence ships in Scotland, that the UK will maintain all defence jobs and bases in Scotland – In other words, all will be different in an Independent Scotland, we will be like Norway…but, all will remain the same, in fact the Scottish public will hardly notice the difference; except they will of course call me(Salmond) PRIME MINISTER.

    If there is, as we all expect, a large turnout, say 75%, at the Neverendum and the SNP fall back to their traditional position in UK elections, i.e. around 500,000 votes, then the best they can hope for is 17%. I say fall back to their traditional position because, apart form the Holyrood 2011 election where Lib Dem and Tory voters switched in protest ( the Labour vote held up remarkably well, only 3% down), the nationalists have always polled around the 500,000 mark – this is their ‘core’ vote.

    October 22 will be seen as a seminal moment in the lead-up to the Neverendum in 2014; and yes Paul I agree with you 100% that if Salmond felt he could ‘save face’, he would find some way of calling-off, and/or, postponing this nonsense. If he loses in autumn 2014, as he surely will, he will be a ‘lame-duck’ in Holyrood and will be ‘turfed-out’ at the next election.

    • Marching on Together

      Excellent piece.

      Never forget that politics is all about power. If the SNP lose the referendum, Salmond will be toast, and the SNP will be in the wilderness for a generation as those who swallowed all the compromises that were necessary so as not to frighten the horses, split the party apart as they argue for a purer ideologically driven line.

      Salmond knows all this, and loves the ability he has to hob-nob with celebrities and world leaders as First Minister. There is no chance of him voluntarily giving that up. His SNP colleagues have grown accustomed to the ministerial cars, the MSP’s salaries and all the accoutrements of power (the two MSPs who left the SNP clearly did not want to give up their salaries, rather than adhere to any principle they might once have held).

      Therefore if the autumn of 2014 arrives and there is no sign of victory for the Yes campaign, the referendum will be postponed, and some controversy will be manufactured in order to foist the blame on Westminster.

      • redetin

        In not too many years, Alex Salmond will have to hand over leadership of the SNP to a successor. Independence is not about one man, Alex Salmond, never has been, but if it was not for the SNP we would not be getting the opportunity to decide our future. You can continue to have direct rule from Westminster, or we can have decisions made in Scotland. You can perhaps make up your mind on that principle without the need for ad hominem comments.

        • Marching on Together

          No sign of an ad hominem attack in anything I said. Everything I said will come to pass, wait and see.

          “Independence is not about one man, Alex Salmond, never has been” So the mandate claimed to hold the referendum, the election result in 2011, when we all voted (or didn’t) for “Alex Salmond for First Minister” was not about one man? Aye, right. Away back to worshipping the Dear Leader with the rest of the SNP.

          • redetin

            “Away back to worshipping the Dear Leader with the rest of the SNP.”
            I think you should address the point that is being debated rather than complaining about an imagined political allegience.

            • Marching on Together

              You wrongly accused me of an ad hominem attack. I pointed out that I made no such thing. The point was addressed.

              Next.

            • redetin

              “loves the ability he has to hob-nob with celebrities and world leaders”

              MoT, I would say that is an “ad hominem” argument addressing what you see as a personality trait of Salmond, and using your view of his personality to support your claims, IMHO, “argumentum ad hominem”.

              Pax tecum.

  10. carl31

    The FM’s behaviour/position is curious…
    If, as indicated by Iain Gray, legal advice given is favourable to the FM’s position he would somehow arrange to have it become known – the FM could simply ask the law Officers permission to release it … which would very likely be forthcoming … and then publish.
    If legal advice given is unfavourable to the FM’s position he would, and has, cite(d) the ministerial code to explain why he hasn’t published.
    So far so good. the FM of any political hue would behave the same.
    But if no legal advice has been sought, why indicate knowingly in interview that it has?
    This is simply a political timebomb. Moreso, given that it is not on a nondescript/non-issue – its on THE issue of the SNP, its Flagship. Curious.

    • Marching on Together

      Euan McColm speculated in Scotland on Sunday (MSM, I know!!) that it was down to Salmond’s famous lack of attention to detail.

  11. carl31

    I’ve long been of the opinion that the SNP’s best trait to differentiate it from the others, is its competence. Competency has been the key at the last couple of SP elections – Labour displayed that they didn’t have it, and so were turfed out under Jack McConnell, and the SNP displayed that they had it and so achieved an overall majority last time when the LibDem support collapsed and almost all moved to the SNP.
    Competency… This episode is seriously undermining it along with confidence in the SNP government.

    Also, when we consider that a number of ministers have also defended the position as set out in the Andrew Neil interview, there is a lot more hanging on this than the current focus on the FM. Will these politicos weather the coming storm, given they have a fair bit less political ability than Wee Eck?

    • ecojon

      @ carl31

      Few Scottish politicians can compete against Eck for his showmanship but the achilles’ heel has been exposed and that is honesty. Eck and the SNP have been badly caught-out and the Scottish People haven’t missed it.

      The ball is now firmly in the hands of the opposition parties in Scotland and relative inexperience matters nought if Jo Public perceives them to be telling the truth and not as wee eck is doing trying to dance on the end of a sharpened, re-hot needle in his bare feet.

      As to support which went to the SNP from the LibDems I have lept an eye open, in vain, for any polls or academic examination of this. I think it likely that the Old radical Scottish Liberals went to the SNP but I hae ma doots about the Democratic element of the party so doing. But that is merely a feelings on my part rather than having an emprical basis.

      • carl31

        I heard once on BBCRScot. that an analysis by Labour hiheidyins on what happened to their vote at the last two elections found that:
        It collapsed under Jack McC where the SNP won a single seat victory (fptp) … next time the overall share of the vote dropped by about 1.5% but the SNP won an overall majority.
        This indicated that a huge swing went from the Libdems to the SNP, but prob hardly at all from Lab direct to SNP, and hardly any from the Libdems to Lab.

        I remember before the election that, in conversation with my son, I considered the protest vote from disillusioned Libdems going to either the SNP or Labour. I guessed at the time that mainly in the central belt it would go Lab, and mainly elsewhere in Scotland it would go SNP, with other parties maybe picking up scraps. The result overall would depend on the numbers of how that played out. How wrong was I?

        It was argued that, in a way the Labour guys could take heart that there has been, as the guy on the radio put it, ‘no seismic shift’ – no big opinion shift on the main big issues in Scottish Society. The vote thats gone to the SNP has come from protest at the Libdems, which will have a shelf life, and swing vote, which is somewhat fickle.

        IMO there is no groundswell of pro-Indy opinion. The votes won by SNP (and credit to them, foremost their leader) are likely to be transient, and more long term work needs be done to achieve the opinion shift that would be enough to win an Independence Referendum.

        The current travails of the SG over the FMs honesty or otherwise are a major blow to them on their intended journey to a win in 2014 and it may well be a decent strategy to somehow postpone. To use a sporting analogy – should the SG collapse the scrum?

  12. k

    Hi Paul, among all the debate about EU membership in the event of Scotland leaving the union i have never heard anyone suggest that it should be for the people to decide on EU membership.

    • ecojon

      @ k

      Well, if nothing changes if there is an independence vote and we are still in the EU would there be a need for a separate referendum.

      If the EU say we need to reapply then my understanding is that there would need to be a Scottish referendum on the terms but I am happy to be corrected on that.

      There is also the problem created if there is a EU referendum in England would that create any mass pressure for one in Scotland. personally I don’t think that we would go down that route as there isn’t the same right-wing politics at work IMHO. Plenty of reactionary politics but that isn’t the same thing 🙂

  13. redetin

    It seems that David Cameron will be offering an IN/OUT referendum on the UK remaining in the EU (another neverendum?). This will surely win him another term in office as it plays to the wishes of “Middle England”, where opinion is swinging against EU membership (Better Not Together?).

  14. JohnBhoy

    It was Voltaire who asked “is politics nothing other than the art of deliberately lying?”. Politicians lie. It is an occupational hazard. Some are better at it than others, though I have sympathy for those who do so with the best of motives.

    Did the First Minister ask for legal advice? Did he get it? Was it favourable to his party? Should he publish it? Those who support independence will, by and large, defend his position; those who are against independence, by and large, will make hay. There will be others, regardless of their political hue and stance on independence, who will try to make a judgement based on the evidence. There will be others still, like me, who don’t give a toss. I chastise him for his poor memory.

    That said, I do enjoy the intelligent debate among/amongst/amid the posters on this topic (Redetin, Jono, Carl31, MoT, ecojon, 100bjd, k, John Burns,…).

    • redetin

      When a politician in the Scottish Parliament describes something as “an honest mistake” and a Deputy Chief Constable says of it “there was criminality involved” then I suppose we must just accept that there can be wide divergences of opinion in legal matters,

  15. Andrew Keith

    I like Alex Salmond. I think he has made a bit of a t*t of himself over this issue. I think he sails too close to the wind on many issues and treats the Scottish parliament with a little too much disdain for my liking. But I still like him, and am amazed at what he has achieved since he came back to lead the SNP. I want independence, I want to remain in Europe and I am reasonably sure that should we achieve independence we will also remain in Europe.

    What I am less sure of is the importance of the specific issues under debate here. I may be missing something but I am puzzled at the suggestion that a failure to seek specific legal advice on the issue of EU membership from law officers is akin to signing any contract without seeking legal advice. I think you may have over-reached yourself there Paul. In short, I think there is much being made of remarkably little and for the weakest of narrow-minded points scoring reasons.

    I have a final question. If “The Scottish Law Officers (the Lord Advocate and the Solicitor General for Scotland) have Ministerial responsibility for the provision of legal advice to the Scottish Ministers on all matters relating to the law of Scotland.” How can anyone conclude that said law officers are competent to offer advice on a matter which is not related to the law of Scotland? Brilliant and interesting that any such advice might be, the question of an independent Scotland’s membership of the EU cannot surely be decided, even partially by reference to Scots Law.

    • Marching on Together

      “I think there is much being made of remarkably little” I am glad that you are so well off that you care little about the thousands of pounds wasted by the SNP in refusing to admit or deny the existence of legal advice that never existed, as that money will be paid by taxpayers, not by the SNP or Salmond.

  16. Richard Wordingham

    On the topic of post-independence nationality, it would entirely be in accordance with recent precedent for British citizens to be split into Scottish, rUK and dual citizens based on how British citizenship was acquired. If Scotland thought Scottish citizenship had been too widely assigned, it would be up to Scotland to strip unwelcome recipients of citizenship. There ought to be provision for former British citizens to cheaply gain the other citizenship on the basis of long residence (possibly also looser connection), regardless of bad character.

    I looked at how the citizenship rules of the 2002 proposed constitution could be applied. As they stand, the rules for the initial citizen body would be open to abuse which England would object to if Scottish citizens were normally to be allowed to live in England. (People could move just to be residing in Scotland at independence!) I can’t see the 2002 rules being in the independence legislation. To implement them, Scotland would have to amend its initial laws, and risk England not recognising all grants of Scottish citizenship. This risks being a poisonous mess. Note that even the Republic of Ireland has given up on untrammelled jus soli in the light of EU law.

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