Scottish independence: 'Unfortunate' wrong impression given on legal advice

European flags Legal advice will now be sought on a go-alone Scotland in Europe

The SNP's Nicola Sturgeon said it was "unfortunate" there was an impression given that ministers had legal advice on an independent Scotland's EU status.

Opposition parties have pressed the Scottish government for more than a year on whether it had such advice.

It came to a head on Tuesday when Ms Sturgeon told MSPs the government had not sought legal soundings.

She insisted that First Minister Alex Salmond had not added to that wrong impression in a BBC interview in March.

Ms Sturgeon told BBC Radio Scotland's Good Morning Scotland programme: "Given the fact that previously the impression had been created that we had legal advice, that we were not prepared to reveal because somehow it didn't suit our purposes, I think was an unfortunate one."

The deputy first minister has now commissioned the Lord Advocate Frank Mulholland to provide specific legal advice on the matter.

She added: "When we were able to seek that legal advice we decided, I decided, to seek permission of the lord advocate to tell the Scottish Parliament that."

What has officially been said?

Ministers have detailed their position on what the status of Scotland in Europe would be in the event of independence.

Here are three official documents mentioning the issue.

  • Choosing Scotland's Future, published in 2007 - It says: "An independent Scotland would continue in the European Union and bear the burdens and fulfil the responsibilities of membership."
  • Your Scotland, Your Voice, published in 2009 - It says: "An independent Scotland would continue membership of the European Union, fulfilling the responsibilities which membership brings, and maintaining its political, economic and social links to Europe."
  • Your Scotland, Your Referendum, published in January 2012 - It says: "Under independence, Scotland would have the rights and responsibilities of a normal, sovereign state and continue its membership in the European Union."

Ms Sturgeon said that it had been made clear by her and others in the past that the ministerial code had not allowed the government to confirm the situation on legal advice over EU membership in an independent Scotland.

She explained that the Edinburgh Agreement, paving the way to hold an independence referendum in the autumn of 2014, had significantly changed the situation.

Ms Sturgeon, who is also the government's constitutional minister, said that given that "context" she could now ask Mr Mulholland to advise on the matter.

She added that when the advice comes through it will help inform what appears in the Scottish government's white paper on independence which is due to go before Holyrood next year.

Opposition parties had accused the first minister of misleading the public on the issue.

That statement had been made in light of an interview Mr Salmond had had with the BBC's Andrew Neil.

The broadcaster asked Mr Salmond directly if he sought advice from the government's law officers on the question of Scotland's future in Europe to which the first minister said: "We have, yes, in terms of the debate."

He added that the advice could be read "in the documents that we have put forward which argue the position that we would be a successor state".

Mr Salmond went on: "You know I can't give you the legal advice or reveal the legal advice of law officers. You know that Andrew.

"But what you can say is that everything that we publish is consistent with the legal advice that we receive."

The first minister appeared before Holyrood on Tuesday to insist that he had been "talking about the issue of Scotland's EU membership in terms of general debate, and in terms of the many eminent legal opinions offered".

The issue of EU membership in an independent Scotland has already led to the law courts.

In July, Scotland's information commissioner Rosemary Agnew had requested Scottish ministers to either confirm or deny whether legal advice had been sought.

The Scottish government appealed that request at the Court of Session in Edinburgh.

The appeal was due to be heard by the court in the middle of December, but Ms Sturgeon revealed that the government was dropping that court battle.

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