Boost for Scottish Government as Lord Advocate vindicates EU legal advice stance

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  By a Newsnet reporter

The Lord Advocate Frank Mulholland, Scotland’s senior law officer, has backed the Scottish Government over the issue of legal advice relating to the EU membership of a future independent Scotland. 

In a letter to Scottish Conservative leader Ruth Davidson, Mr Mulholland explained that it was sensible and prudent of the Scottish Government not to seek specific legal advice before the signing of the Edinburgh Agreement with the UK Government.

The agreement, signed on October 15 by First Minster Alex Salmond and Prime Minister David Cameron, granted a Section 30 Order to the Scottish Parliament giving it the legal power to hold a binding referendum.  Any change in the constitutional relationship between Holyrood and Westminster is a reserved power held by the Westminster Parliament, however the agreement ensures that the result of the referendum is binding.

Mr Mulholland said that the deal also set out the conditions for seeking legal advice on Scotland’s EU membership.  Until these conditions were defined, the Scottish Government could have been charged with wasting public funds if it had formally requested legal advice on the basis of an uncertain legal situation.

The Scottish Government made a formal request to the Lord Advocate to seek legal advice on 23 October, prompting a deluge of criticism from the anti-independence parties and media commentators who have repeatedly questioned the need for the delay. 

There have been angry claims from opposition parties that Mr Salmond led many to believe that advice had in fact been sought when it was not the case and that the First Minister should have clarified the situation sooner.

In his letter, Mr Mulholland noted that the convention which says that Government ministers must keep legal advice confidential has been in place since 1865.  The convention has been consistently adhered to by UK Governments, and since the introduction of devolution, also by the Scottish, Welsh and Northern Irish Governments.

Mr Mulholland wrote: “It’s for ministers to judge the appropriate point to seek specific legal advice from law officers.

“Law officers should be consulted in good time before the Government is committed to significant decisions involving legal consideration.

“The Deputy First Minister has explained to Parliament that the Edinburgh agreement, in laying out an agreed route to independence, provided the basis upon which specific legal advice could be sought.

“Up until that point it was possible that the referendum could be the subject of court proceedings with all the uncertainty that that entails.

“It was possible that the court would rule that this Parliament did not have the power to hold a referendum, in which case the issue would be academic.

“Following the signing of the Edinburgh Agreement, there will be a lawful referendum so that uncertainty has been removed.”

The Lord Advocate’s intervention followed demands from Scottish Labour for an emergency statement to parliament setting out what advice he gave Mr Salmond and when.

Speaking on October 26th, Labour MSP Patricia Ferguson said: “We have seen a number of contradictory statements from Alex Salmond and Nicola Sturgeon this week, and they have failed to give a credible explanation for the chain of events surrounding this crisis.

“We would like to afford the Lord Advocate an opportunity to make a statement or give evidence as a way of restoring confidence in this process. He should have nothing to hide and it is time he stepped up.”

However, despite the senior law officer’s clarification, Labour have now responded by attacking Mr Mulholland’s integrity.  Labour MSP Lewis Macdonald, the party’s spokesman on justice, reacted angrily to Mr Mulholland’s statement that the Scottish Government had behaved correctly on the issue and claimed that Scotland’s top law officer had been “politically compromised by Alex Salmond”.

On October 30, former Labour First Minister Henry McLeish also backed the Scottish Government on the matter, saying that Government ministers had not been misleading in their actions and declarations on the topic of Scottish EU membership.

In recent weeks pro-Union politicians and journalists have maintained that the Scottish Government was misleading the public, a claim that has received wide airing in the Scottish media, including the BBC.  Last night’s Reporting Scotland saw Labour accusations against Mr Salmond repeated by BBC Scotland political editor Brian Taylor, but no mention was made of the Lord Advocate’s clarification statement which had been released that afternoon.