Lord Advocate backs Scottish Government in row over EU legal advice
Frank Mulholland tells MSPs the Edinburgh Agreement set out the terms for a legally binding referendum.
Scotland's senior law officer has defended the Scottish Government's decision not to seek legal advice on EU membership before agreeing the terms of the independence referendum.
Responding to questions from Labour MSPs, Lord Advocate Frank Mulholland said it was for ministers to decide when advice should be sought.
He also argued that it made sense not to consult the law officers before the Edinburgh Agreement with the UK government was signed because there was a risk of the referendum being blocked in the courts.
Under the agreement signed on October 15, the UK Government agreed a Section 30 Order which temporarily gives the Scottish Parliament the power to hold a legally binding referendum, a right which would otherwise be reserved to Westminster.
Mr Mulholland told MSPs that the deal set out the conditions for seeking legal advice on whether an independent Scotland would continue as a member of the EU, as the SNP has argued, or have to reapply to join.
The Lord Advocate was ordered on October 23 to obtain legal advice and asked to make the decision public. Deputy First Minister Nicola Sturgeon then told Parliament for the first time that the government had not sought advice, prompting a barrage of criticism from opposition parties and the No campaign.
The government had previously gone to court to contest a decision by the information commissioner, Rosemary Agnew, that it should reveal whether it had received any advice.
Mr Mulholland said: "It's for ministers to judge the appropriate point to seek specific legal advice from law officers,"
He added that the convention under which ministers kept details of legal advice secret had been in place since 1865.
"Law officers should be consulted in good time before the Government is committed to significant decisions involving legal consideration," he said.
"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 set out his position in a letter to Conservative leader Ruth Davidson last week.
Labour MSP Lewis Macdonald accused the SNP administration of forcing Mr Mulholland to "dance to the political tunes played by ministers".
He said: "The Lord Advocate has given the clearest indication that his position has been politically compromised by Alex Salmond.
"When asked in the chamber he was unable to point to any change in the legal circumstances to allow Nicola Sturgeon to reveal on October 23 that no legal advice had been sought on Scotland's place in the EU. The failure to reveal that earlier was, instead, purely a political decision.
"The Lord Advocate has now made clear that a referendum held without the agreement of the UK Government could have been challenged in the courts. The question is: did ministers ever ask him for that advice and did he give it?
"For the request to be made on the morning of Sturgeon's speech, and for consent to be given within a matter of minutes, to enable the Deputy First Minister to make her speech shows that there were no significant hurdles to the release of this information.
"The Lord Advocate should not be forced to dance to the political tunes played by ministers."